CODESHARE AGREEMENT
This Codeshare Agreement (the "Agreement"), dated as of September 4,
2001, is entered into by and between Frontier Airlines, Inc. ("Frontier"), a
corporation organized under the laws of Colorado, and Mesa Airlines, Inc.
("Mesa"), a corporation organized under the laws of Nevada.
WHEREAS, Frontier wishes to expand its route network to offer new
competitive services in additional markets, and to enhance Frontier's
existing route network by increasing frequency of service on certain
routes;
WHEREAS, Mesa is an operator of regional jet aircraft;
WHEREAS, Frontier is hub carrier at Denver;
WHEREAS, Mesa has no services at Denver;
WHEREAS, Mesa and Frontier wish to collaborate to provide new services,
where neither Frontier nor Mesa could economically and efficiently do
so independently;
WHEREAS, Frontier and Mesa wish to enter into this Agreement whereby
Mesa will carry the "F9" code on the routes identified in Annex B;
NOW THEREFORE, In consideration of the mutual covenants and promises in
this Agreement, Frontier and Mesa hereby agree as follows:
1. DEFINITIONS
1.1 Capitalized terms used in this Agreement, unless the context
otherwise requires or expressly provides, shall have the
meanings setforth in Annex A.
1.2 It is agreed that accepted industry procedures and any
existing agreements relating to the interlining of passengers
and baggage, including those industry procedures set forth in
the ATA Resolution 5.65 (Interline Traffic Agreement -
Passengers) for carriage solely within and between the United
States, Canada, Puerto Rico and the U.S. Virgin Islands, shall
apply to the provision of air transport and the related
transactions contemplated by this Agreement, except to the
extent inconsistent or in conflict with the terms of this
Agreement.
2. CODESHARE SERVICE
2.1 The parties shall mutually designate certain flights as
Codeshared Flights, whereby Mesa will carry Frontier's "F9"
designator code on the city-pair routes identified in Annex B.
2.1.1 The parties shall use commercially
reasonable efforts to meet the target
implementation dates specified in Annex B.
Provided, however, that these target dates
are subject to change in light of any
necessary regulatory approvals, operational
constraints, and the delivery of aircraft.
2.1.2 Frontier shall cooperate in promptly
publishing all Codeshared Flights in the
Airline Guides, Reservations Systems and
CRSs.
2.1.3 Mesa reserves the right to discontinue
Codeshared Flights on any specific route,
flight or schedule, and in the event of such
discontinuation, Frontier shall cooperate in
publishing the resulting changes in the
Airline Guides, Reservations Systems and
CRSs.
2.1.4 Mesa shall have no obligation to extend
Codeshared Flights to other routes or to
maintain operations on any route; no such
obligation can be created by any oral
statements or representations or course of
dealing, but only by express written
agreement.
2.1.5 Mesa shall have the sole and exclusive right
to operate flights using the F9 code on the
Mesa Exclusive Routes; provided, however,
that Mesa shall have no obligation to
operate flights on the Mesa Exclusive R
Routes. Mesa agrees to provide Frontier
with ninety (90) days prior advance written
notice of intention to provide service on
any Mesa Exclusive Route.
2.1.6 Mesa shall have the right, but not the
obligation, to operate at least fifty
percent (50%) of all flights operating under
the F9 code on the Mesa Minimum Service
Routes specified in Annex C.
2.2 Detailed procedures for implementing this Agreement will be set forth
in the procedures manual prepared by the parties in conjunction with
this Agreement (the "Procedures Manual"). The parties will use their
best commercially reasonable efforts to finalize the Procedures
Manual prior to program implementation. The Procedures Manual,
including any amendments or supplements thereto agreed in writing
between the parties from time to time is incorporated by reference
into and made a part of this Agreement; provided, however, that in
the event of a conflict between a provision of this Agreement and any
provision of the Procedures Manual, as amended and supplemented, the
terms of this Agreement shall prevail.
2.4 In the event of any flight delay or cancellation that requires a
Codeshared Passenger to be involuntarily rerouted or denied boarding
and denied boarding compensation is paid on the operating carriers
ticket stock or the Mesa special service ticket stock, as the case
may be, to such passenger, the party causing such involuntarily
rerouting or denied boarding shall bear all reasonable associated
costs arising out of its actions. Each of the parties agrees to
provide seat availability, subject to reasonable capacity
limitations, on their respective flights in connection with vouchers
awarded to passengers in connection with this Section. Settlement of
the costs associated with the involuntary rerouting or denied
boarding will be conducted through the ACH and subject to ACH
policies and procedures. Notwithstanding the foregoing, Frontier
agrees to provide customer service support in the event of a flight
delay or cancellation at its Customer Service Counter at Denver
International Airport. In addition, baggage handling and settlement
of baggage handling claims shall be in accordance with existing
tariffs and the Trade Practice Manual of the Air Transport
Association or the IATA Resolutions and Recommended Practices Manual,
whichever is applicable.
2.5 The parties shall use commercially reasonable efforts to coordinate
their service schedules and to consider schedule and route changes
suggested by Frontier to maximize program passengers and revenue and
to maximize the convenience and minimize the waiting time of
passengers making connections between the Codeshared Flights and
other flights operated by the parties; provided, however, that
neither party is obligated to operate specific flights or service
schedules and each party retains the right to determine the service
schedules of its own flights, including, without limitations, the
right to reduce flights, add new flights and discontinue flights and
cities or airports served. Each party agrees to notify the other
party as soon as practicable, but not less than sixty (60) days
unless otherwise agreed to by the parties, in advance of any schedule
change to a Codeshared Flight or a connecting Frontier-operated
flight. If Frontier suspends or terminates service to a particular
market shall be solely responsible for transferring the reservations
of such passengers to other carriers or making alternative
arrangements. If Mesa suspends or terminates service to a particular
market it will pay Frontier five dollars ($5.00) per PNR to transfer
the reservations of such passengers to other carriers. Frontier will
charge Mesa the net expense of ticketing passengers on a
reaccomodation basis through the ACH.
2.6 The Conditions of Carriage of Frontier (as modified from time to
time) shall govern the transportation of Codeshared Passengers on the
Codeshared Flights, except that if there are any material differences
between the operating rules and procedures of Mesa, and those
operating rules and procedures that apply to Frontier-operated
flights, such material differences shall be described in the
Procedures Manual and Frontier shall disclose the same in its
Conditions of Carriage.
2.7 The Operating Carrier has final authority and responsibility concerning the
operation and safety of the aircraft and its passengers. In
emergencies, the parties shall adhere to the emergency procedures for
Codeshared Passengers set forth in the Procedures Manual.
2.8 Upon request by Mesa, Frontier agrees to provide Mesa with ticketing,
gate and ground handling services at Denver International Airport and
stations where both carriers operate based on a "per turn" fee to be
agreed to by the parties and subject to a separate ground handling
agreement. Subject to the provisions in Section 3.4, Mesa shall be
responsible for the cost of gates, facilities, and the build-out of
such at each station. Mesa will also be responsible for providing
all the equipment necessary for its operations at each station. Mesa
shall be responsible for securing gates at Denver International
Airport.
3. IMPLEMENTATION EXPENSES
3.1. Each party shall bear its own automation costs and expenses
associated with the services contemplated by this Agreement. Mesa
shall retain the right under this Agreement to convert to Mesa's
reservation system, utilize Mesa ticket stock and operate a dual code
(YV) on the Mesa local markets.
3.2 Frontier and Mesa will share the cost and expense (on a 80/20 basis)
of roadside, exterior, check-in concourse, gate and baggage service
signage placed at airports and city ticket offices identifying
Frontier in locations served by the Codeshared Flights in order to
facilitate travel on the Codeshared Flights. Frontier will be
responsible for installing and maintaining all such signage, but the
parties will mutually determine which party will obtain any necessary
formal or informal approvals from appropriate airport or other
authorities to install such signage.
3.3 Each party shall retain all rights, titles and interests in systems, software,
equipment and facilities funded by it.
3.4 In the event that Frontier enters a market previously served by Mesa as a
Codeshared Flight, Frontier agrees to: (i) assume Mesa's lease at the
airport ; (ii) reimburse Mesa for the EDS line and phone system
installations; (iii) reimburse Mesa for all start-up training costs
for those employees currently employed by Mesa at such location; (iv)
reimburse Mesa for all unamortized reasonable costs of the build out
of facilities at such location; and (v) offer to purchase from Mesa
or assume the lease of any equipment, including but not limited to
computers, printers, and ground support equipment, owned or leased by
Mesa at the airport at a price equal to the fair market value.
Notwithstanding the foregoing, in the event that the then above
mentioned facilities or equipment is not suitable for Frontier's
operations due to the size or type of aircraft, Frontier shall not be
responsible for such reimbursement.
4. INVENTORY CONTROL AND PROCEDURES
4.1 Frontier will ticket Codeshared Passengers using available CRS inventory (free
sale environment) as set forth in the Procedures Manual. The parties
will map inventory classes of the Codeshared Flights to inventory
classes of Frontier as set forth in the Procedures Manual. The
parties will endeavor to map the average coupon value of Frontier'
inventory classes to comparable classes of Mesa to provide
nondiscriminatory access for bookings made by Frontier for passengers
yielding comparable revenue values, provided however that Mesa will
retain sole and ultimate control over the management of seat
inventory availability on Codeshared Flights that are operated by
Mesa.
4.2 Frontier shall provide authorized Mesa individuals restricted access to
Frontier's CRS partition. Each day Frontier will transmit to Mesa a
file containing daily booking information on each Codeshared Flight.
Each day Frontier shall accept from Mesa daily updated authorization
levels for each Codeshared Flight.
5. MARKETING, RESERVATIONS AND PRODUCT DISPLAY
5.1 The Codeshared Flights will be marketed and promoted by Frontier
under its flight designator code. Frontier agrees to promote the
Codeshared Flights throughout the term of this Agreement through
sales, advertising, and promotional support to enhance the interline
exchange of passengers between the parties. Each party shall
ensure that its respective advertising and promotions shall comply
with all applicable governmental laws, rules and regulations.
Frontier shall comply with 14 C.F.R. Section 399.88 and any other
applicable rules regarding the disclosure and holding out of
Codeshared Flights provided for herein.
5.2 Reservations for passengers using the services described in this Agreement
will be made by Frontier on a non-discriminatory basis in accordance
with Frontier's established methods and procedures. For passengers
originating their travel at points other than those served by Mesa
under this Agreement, either on Frontier's system or on the systems
of other airlines, connecting reservations to the services of Mesa
will also be on a non-discriminatory basis in accordance with
currently established industry methods and practices. In all cases,
Frontier will confirm the reservations of Mesa's passengers through
the entire itinerary of their scheduled trips. When a contact number
is supplied by the passengers making such reservations, Frontier will
assume the responsibility of notifying passengers of any changes in
Mesa's schedules or operations, provided that Mesa furnishes Frontier
with advance notice as set forth in Section 2.5 of such changes.
5.3 Frontier may identify the Codeshared Flights, to the extent permitted by
governmental rules and regulations, in Airline Guides, Timetables,
CRS' and Reservations Systems using Frontier' flight designator
code. Any costs incurred for the publication of Codeshared Flights
or connections to and from such flights in Airline Guides, CRSs and
Reservation Systems shall be borne by Frontier. Each party shall
include the Codeshared Flights in its internal Reservations Systems.
5.4 Frontier will publish schedules for Mesa in cites served by Mesa but not
served by Frontier. The format and nature of such schedules shall be
consistent with schedules published by Frontier in cities not served
by Mesa.
5.5 Frontier and Mesa will mutually cooperate to create an interline agreement to
transport cargo on an interline basis, provided the agreement makes
sound business sense to both parties. This agreement will be
developed and executed separate to this Codeshare Agreement.
5.6 Mesa will actively pursue codeshare agreements with other codeshare partners
of Frontier. Upon reaching such agreements, Frontier will be allowed
to market codeshare to codeshare service. Under these agreements,
Frontier will only be allowed to recover its costs in the manner
prescribed in Section 6.
6. TRAFFIC DOCUMENT ISSUANCE AND SETTLEMENT
6.1 Frontier shall establish, publish and sell through passenger fares.
Passenger revenues will be allocated to each carrier based upon the
straight rate/prorate formula (as set forth in detail in section
6.6), unless the division of such revenue is otherwise mutually
agreeable to Frontier and Mesa.
6.2 Mesa shall establish, publish, sell and collect local fares
applicable to travel within Mesa Exclusive Routes. Unless otherwise
provided herein, Mesa shall be paid its local fares for passengers
traveling solely on Mesa's flights in accordance with industry and
Clearing House practices.
6.3 Flight coupons for use on the Codeshared Flights may be issued by
either party, or by third parties with whom the parties from time to
time have interline traffic agreements.
6.4 All flight coupons on Codeshared Flights shall be sent to and
retained by Mesa and shall be billed by Mesa to Frontier or the
third-party Ticketing Carrier, as applicable, using the standard
interline process of the ACH (as set forth in detail in section
6.5). Settlement of other charges between the carriers will be
invoiced and payable through the ACH.
6.5 Mesa shall remit to Frontier the interline service charge as published by the
ACH for all commissionable flight coupons billed under this Agreement
for passengers traveling solely on Mesa flights (i.e., passengers who
do not connect to/from a Frontier flight).
6.6 Marketing Carrier Tickets issued by Frontier or Mesa for wholly-domestic
itineraries shall be settled in accordance with standard industry
straight rate proration as defined in the Passenger Proration Manual
based on construction of "highY" fare values, which shall be agreed
to by the parties in advance of commencing Codeshared Flights and the
parties agree to review such rates on a quarterly basis if necessary
or requested by the parties. For fare verification purposes, the
applicable published fare is that filed with the U.S. Department of
Transportation or shown in Air Tariff or Airline Passenger Tariff in
PIPPS (Passenger Interline Prorate System) in effect on the date that
the passenger's ticket is issued. For example, if the Mesa's segment
construction Y fare OKC- DEN is $100 and the Frontier segment
construction Y fare for DEN- SEA $400, the dollar value of the
OKC-SEA ticket would be divided 20% to Mesa and 80% to Frontier.
For itineraries involving an international segment (excluding Canada
and other countries that are treated as "domestic" for proration
purposes under the ACH rules), proration will be based on the
procedures of the Multilateral Prorate Agency as published in the
IATA Revenue Accounting Manual. Marketing Carrier Tickets issued by
parties other than Frontier or Mesa shall be settled in accordance
with any proration or similar agreements then in force between Mesa
and the Ticketing Carrier.
6.7 Frontier and Mesa will enter into an industry standard Ticketing and Baggage
Agreement that will become part of this Agreement. Each carrier will
use its own ticket stock associated for special service ticket items.
Any other matters not specifically addressed in this Agreement, which
require the collecting of fees or issuance of ticket stock, will be
subject to the rules of the ACH.
6.8 In consideration for the reservation services, CRS fees, credit card
charge commissions, and certain ticketing services provided by
Frontier under this Agreement, Mesa agrees to pay to Frontier five
dollars ($5.00) per passenger fee that involves passengers flying
solely on Mesa routes. Frontier shall xxxx Xxxx on a monthly basis
and such billing shall be conducted through the ACH and subject to
the ACH policies and procedures..
6.9 In the case of a rejected credit card or a returned check, Frontier
may recover through the ACH any funds paid to Mesa associated with
such rejected credit card or returned check.
7. TRAINING
7.1 Except as otherwise agreed, each party shall provide or arrange, at
its own cost and expense, all initial and recurring training of its
personnel (and its travel agents) to facilitate the Codeshared
Flights and operations at airports served by the Codeshared Flights,
reservations and ticket offices and other points of contact between
the parties and with the public. This training shall include
passenger service, reservations and sales activities and in-flight
service involving the Codeshared Flights, all as more fully described
in the Procedures Manual.
7.2 Frontier and Mesa shall share any training materials developed to
support the Codeshared Flights; provided that the copyright and all
other propriety rights to any materials exchanged shall remain with
the party who originally developed such materials. Notwithstanding,
Mesa shall only be responsible for procedures training as set forth
in the Procedures Manual. Any changes to the Procedures Manual must
be agreed to by both Frontier and Mesa.
8. SECURITY
The parties shall cooperate in matters of security procedures, requirements
and obligations at all airports served by the Codeshared Flights in accordance
with the Procedures Manual. The Operating Carrier reserves the right to apply
at its sole expense the provisions of its own security programs to the
carriage of all passengers, baggage and cargo on board the Codeshared
Flights. Such provisions may include any then applicable procedures used for
the physical screening of passengers, baggage or cargo, interviewing of
passengers and/or selective loading of baggage or cargo. Mesa will be liable
for only the security costs related to local market passengers traveling
solely on Mesa flights.
9. AIRCRAFT MAINTENANCE AND CLEANING
The Operating Carrier shall have sole responsibility for the maintenance and
cleaning of its leased and owned aircraft and other equipment used in
connection with the Codeshared Flights. Maintenance of such aircraft and
equipment must, at a minimum, comply with the standards imposed by the
relevant aviation authorities.
10. FREE AND REDUCED RATE TRANSPORTATION
Unless otherwise provided by relevant agreements between the Operating Carrier
and other parties neither party shall be entitled to ticket travel industry
non-revenue, discounted (i.e., AD, ID, etc.) or free travel on the Codeshared
Flights.
11. FREQUENT FLYERS
11.1 Frontier may offer to participants in the Frontier Frequent Flyer
program only (and not participants in any other frequent flyer
program with which Frontier may have a participation agreement) the
opportunity to accrue and redeem Frontier mileage on the Codeshared
Flights. Mileage accrual on Codeshared Flights will be calculated by
and awarded to Frontier Frequent Flyer participants at Frontier' sole
discretion. Mesa shall have sole and exclusive control of frequent
flyer capacity awarded in each route for award travel on Codeshared
Flights for Frontier Frequent Flyer program members; provided,
however such average frequent flyer capacity on Mesa flights shall
not be less than seven percent("FF Seat Availability").
11.2 Within five (5) days after (a) issuance or receipt of notice of
termination of this Agreement or (b) receipt of notice of
discontinuance of designated Codeshared Flights for any reason,
Frontier will discontinue issuing Marketing Carrier Tickets as
frequent flyer awards for travel on the discontinued flights where
such travel is to occur after the effective date of such termination
or discontinuance and Mesa shall have no further obligations under
this Agreement.
11.3 Frontier shall administer its Frequent Flyer Program in a manner that
is consistent with the parties' respective obligations under this
Agreement and in accordance with all applicable laws. Frontier shall
be solely responsible for the promotion and administration of its
Frequent Flyer Program, including without limitation, processing of
member enrollments, determining eligibility for award travel,
issuance of all award certificates and tickets, recording of mileage
accruals, redemption's and other account activity, preparation and
distribution of account statements, responding to member inquiries
and other customer services. The advertising and promotional
materials disseminated by Frontier respecting mileage accrual or
redemption on the Codeshared Flights shall, to the extent
practicable, place the public on notice that availability of such
accruals and redemption's will terminate in the event of the
termination of this Agreement or discontinuance of designated
Codeshared Flights. In the event either party gives notice of
termination of this Agreement, Frontier at its expense will advise
members of its Frequent Flyer Program in accordance with program
rules of the impending termination and the restrictions on
post-termination award travel on the Codeshared Flights.
11.4 Mesa will have no responsibility or liability for Frontier' promotion
or administration of its Frequent Flyer Program and Frontier shall
indemnify, defend and hold harmless the Operating Carrier Indemnified
Party (as defined in Section 15.2) against any and all Damages caused
by, arising out of or relating to Frontier' promotion or
administration (whether proper or improper) of its Frequent Flyer
Program. This indemnity shall survive the termination of this
Agreement.
12. TRADEMARKS AND CORPORATE IDENTIFICATION
12.1 Each of Frontier and Mesa acknowledges for all purposes that any and
all logos, trademarks, service marks and trade names of the other,
whether registered or not, are and shall at all times remain the
exclusive property of the other and may not be used in a manner not
authorized without the prior written consent of such party, except as
set forth herein. Each of Frontier and Mesa further acknowledges
that any goodwill or other rights which arise as a result of the use
by it of the other party's marks as permitted under this Agreement
shall accrue solely to the benefit of the party owning such marks,
whether registered or not.
12.2 Each of Frontier and Mesa hereby grants to the other, a
non-exclusive, non-transferable, royalty-free license for the terms
of this Agreement to use their respective service marks ("Frontier"
for Frontier and "Mesa" for Mesa, each a "Licensed Trademark"),
subject to the terms and conditions set forth in this Section 12.
This license is limited to the use of the Licensed Trademarks in
connection with the advertising and promotion of the Codeshared
Flights contemplated by this Agreement.
12.3 Each party agrees to use the Licensed Trademarks only in a manner
approved in advance and in writing by the party owning such Licensed
Trademarks. Each Licensed Trademark shall be marked with an(R)or TM
or SM or other symbol.
12.4 Each party agrees that all advertising and promotional materials
bearing the Licensed Trademarks in relation to air transport services
contemplated by this Agreement shall meet the quality and
presentation standards as set forth by the party owning the relevant
Licensed Trademark.
12.5 Each party has sole discretion to determine the acceptability of both
the quality and presentation of advertising and promotional materials
using its Licensed Trademark.
12.6 Each party is responsible for providing to its own authorized agents
and airport locations the agreed promotional materials bearing the
Licensed Trademarks.
12.7 Mesa operated flights under the F9 codeshare will be operated with an
aircraft livery that reflects either Mesa or Frontier.
13. REPRESENTATIONS AND WARRANTIES
13.1 Each of Frontier and Mesa hereby represents and warrants to the
others as follows:
a. It is a duly incorporated and validly existing corporation,
in good standing under the laws of its jurisdiction of
incorporation; is an air carrier duly authorized to act as
such by the government of its country of incorporation; and
has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by it
have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered
by it and assuming due authorization, execution and delivery
by the other party hereto. This Agreement constitutes its
legal, valid and binding obligation, enforceable against it
in accordance with its terms, except to the extent that
enforceability may be limited or modified by the effect of
bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and the application of general
principles of equity and public policy.
b. The execution, delivery or performance by it of this
Agreement, shall not (i) contravene, conflict with or cause
a default under (A) any applicable law, rule or regulation
binding on it, or (B) any provision of its Charter,
Certificate of Incorporation, Bylaws or other documents of
corporate governance, or (ii) contravene or cause a breach
or violation of any agreement or instrument to which it is a
party or by which it is bound, except where such conflict,
contravention or breach would not have a material adverse
effect on it and its Affiliates taken as a whole or on its
ability to perform this Agreement.
c. The execution, delivery and performance by it of this
Agreement do not require the consent or approval of or the
giving of notice to, the registration with, the recording or
filing of any document with, or the taking of any other
action in respect of any competent authority, any trustee or
holder of any of its indebtedness or obligations any
stockholder or any other person or entity, and except where
failure to obtain or take such action would not have a
material adverse effect on it or a material adverse effect
on the transactions contemplated in this Agreement.
13.2 Each of the foregoing representations and warranties shall survive
the execution and delivery of this Agreement.
14. TERM
14.1 The term of this Agreement shall commence on the date Codeshared
Services begins and shall continue until the fifth year anniversary
of such date, unless earlier terminated pursuant to Sections 14.2,
18, 24, or as elsewhere provided in this Agreement. At the
expiration of the initial term, this Agreement shall be automatically
renewed for additional terms of one year each, unless either party
provides written notice to the other party of its intent not to renew
this Agreement at least 350 days prior to the end of the initial or
any renewal term.
14.2 This Agreement may be terminated prior to expiration as follows:
a. at any time by mutual written consent of the parties hereto;
b. by the non-breaching party upon the breach of a material
term, agreement, covenant, representation or warranty of
this Agreement (other than a breach of Section 6.3, 6.4,
6.5, or 6.6 of this Agreement or the failure to otherwise
pay any sums due pursuant to this Agreement), including a
failure to comply with any material obligations and
procedures set forth in the Procedures Manual, provided that
the non-breaching party provides the breaching party at
least 30 days' prior written notice describing the alleged
breach with as much particularity as reasonably
practicable. Termination under this Section 14.2.c shall
not be effective if the breaching party, (i) corrects such
breach within twenty-five (25) days following receipt of
such notice, or (ii) if such breach cannot be corrected in
such 25-day period, take actions reasonably contemplated to
correct such breach and which do correct such breach no
later than 30 days following receipt of such notice.
c. by the non-breaching party upon the breach of Section 6 of
this Agreement or the failure to otherwise pay any sums due
to the non-breaching party pursuant to this Agreement by the
other party, after the non-breaching party provides the
breaching party at least 15 days' prior written notice
describing, with as much particularity as practical the
alleged breach and the breaching party does not, within 7
days following receipt of such notice, correct such breach;
or
d. at any time by Mesa or Frontier upon written notice if the
other party (i) makes an assignment for the benefit of
creditors; (ii) suspends the payment of or admits in writing
its inability to pay, or generally fails to pay, its debts
as they become due; (iii) has suspended (as declared by a
clearing house) its transactions with banks and/or other
financial institutions or proposes or commences a moratorium
upon or extension or composition of its debts; (iv) has
issued against it any writ, execution, process or abstract
of judgment which may have a material adverse effect on it
and which is not dismissed, satisfied or stayed within 60
days; (v) files a petition for bankruptcy, composition,
corporate reorganization, corporate liquidation, arrangement
or special liquidation proceedings; or (vi) ceases all or a
substantial part of its operations (other than due to Force
Majeure as defined in Section 18).
e. if: (i) Mesa's arrival performance as measured by the DOT
for the Denver hub falls one and one-half percentage points
below Frontier's arrival performance for the Denver Hub for
four of any five consecutive calendar months or (ii) Mesa's
flight completion factor (excluding cancellations
attributable to weather, air traffic control cancellations,
cancellations resulting from an emergency airworthiness
directive from the FAA affecting all aircraft similarly
equipped, cancellations resulting from the acts or omissions
of Frontier or its employees, including, without limitation,
damage to aircraft) for the Denver hub falls below 97% for
four of any of five consecutive calendar months (each, a
"Cancellation Event"), Frontier, at its election, may by
written notice (a "Performance Notice") inform Mesa that if
the Cancellation Event is not cured within ninety (90) days
from receipt of such Performance Notice (the "Cure Period"),
Frontier, at its option may give a Termination Notice (as
defined below). If the Cancellation Event relates to Mesa's
arrival performance, the cure shall be effected by Mesa
bringing its arrival performance for such hub to a rate that
is equal to or above Frontier's arrival performance as
measured by the DOT at the Denver hub during the Cure
Period. If the Cancellation Event relates to the Mesa's
flight completion factor, the cure shall be effected by Mesa
bringing its flight completion factor at the Denver hub to
97% or higher during the Cure Period. If, after the Cure
Period has expired and Mesa has not cured the Cancellation
Event as set forth above, then Frontier at any time during
the thirty (30) day period following the lapse of the Cure
Period without cure may, upon 60 days' prior written notice
to Mesa ("Termination Notice"), terminate this Agreement.
Frontier and Mesa shall provide each other with written
reports, within ten days from the last day of the month,
containing the necessary data for the above calculations.
14.3 Subject to Section 14.4, in the event of termination or expiration of
this Agreement, Frontier shall take all reasonable actions to confirm
and preserve reservations on the Operating Carrier for passengers
scheduled to be traveling on Marketing Carrier Tickets and, as
applicable, endorse or otherwise modify or reissue such tickets to
permit use on the Operating Carrier. The Operating Carrier shall
accept passengers traveling on such tickets as if such reservations
had been booked through the Operating Carrier using ordinary
interline procedures but giving effect to the ticket settlement
methodology provided in Section 6.4 of this Agreement.
14.4 In the event that this Agreement is terminated by the Operating Carrier
pursuant to Section `4.2.b,c or d, the Operating Carrier, in its sole
discretion, may decline any or all passengers scheduled to be
traveling on Marketing Carrier Tickets. The Operating Carrier who
terminates this Agreement shall be solely responsible for
transferring the reservations of such passengers to other carriers or
making other alternative arrangements.
14.5 Mesa agrees to dedicate five (5) aircraft to Codeshare Flights under
this Agreement by April 30, 2002 and Mesa agrees that absent a
material adverse change in its business that it will not reduce the
size of its fleet in Denver by more than one aircaft every two (2)
months.
15. INDEMNIFICATION
15.1 Subject to the indemnities provided in Section 15.2(a), Mesa shall
indemnify, defend and hold harmless Frontier and its Affiliates and
their respective directors, officers, employees and agents
(individually a "Marketing Carrier Indemnified Party") from and
against any and all Damages arising out of, caused by or occurring in
connection with (or alleged to arise out of, be caused by or be
occurring in connection with):
a. the death of or injury to persons (other than employees of
Marketing Carrier Indemnified Party while performing
services required under this Agreement), delay of passengers
or delay or loss of or damage to property (including
aircraft, baggage or cargo) occurring while such persons or
property are under the control or in the custody of, or
being transported by, Mesa, (including for the avoidance of
doubt, death of or injury to codeshare passengers traveling
on Marketing Carrier Tickets that implement limits of
liability with respect to passenger claims that differ from
those of the Operating Carrier) except to the extent and
degree caused by the willful misconduct of a Marketing
Carrier Indemnified Party (in which case Frontier shall
indemnify Mesa);
b. negligent acts or omissions Mesa which are in any way
related to services contemplated by this Agreement to the
extent insurable;
c. Mesa's breach of any of its representations or warranties
set forth in Section 13 of this Agreement;
d. infringement of a third party's intellectual property or
similar rights by Mesa's logos, trademarks, service marks or
trade names; or
e. based upon Mesa's provision of or failure to provide
carriage or service in conformity with the governing
conditions of carriage or orders or regulations binding on
the carrier with which the passenger has a contract of
carriage.
15.2 Subject to the indemnities provided in Section 15.1(a), Frontier
shall indemnify, defend and hold harmless Mesa and its Affiliates and
their respective directors, officers, employees and agents
(individually an "Operating Carrier Indemnified Party") against any
and all Damages arising out of, caused by or occurring in connection
with (or alleged to arise out of, be caused by or be occurring in
connection with):
a. the death of or injury to persons (other than employees of
the Operating Carrier Indemnified Party while performing
services required under this Agreement), delay of passengers
or delay or loss of or damage to property (including
aircraft, baggage or cargo) occurring while such persons or
property are under the control or in the custody of, or
being transported by, the Marketing Carrier, (including for
the avoidance of doubt, death of or injury to codeshare
passengers traveling on Marketing Carrier Tickets that
implement limits of liability with respect to passenger
claims that differ from those of the Operating Carrier)
except to the extent and degree caused by the willful
misconduct of a Operating Carrier Indemnified Party (in
which case Mesa shall indemnify the Marketing Carrier
Indemnified Party
b. negligent acts or omissions of a Marketing Carrier
Indemnified Party which are in any way related to services
contemplated under this Agreement to the extent insurable;
c. passenger claims based on Frontier' failure to properly
issue and complete transportation documentation in
accordance with the provisions of the standard IATA, or ATA
(as may be appropriate), ticketing procedures, including the
failure to put a proper notice of the limits of liability on
such documentation or regulatory requirements imposed by
governing governmental authorities;
d. Frontier' breach of its representations or warranties set
forth in Section 13of this Agreement; or
e. infringement of a third party's intellectual property or
similar rights by Frontier' logos, trademarks, service marks
or trade names.
15.3 A party (the "Indemnified Party") that believes it is entitled to
indemnification from another party (the "Indemnifying Party")
pursuant to the terms of this Agreement with respect to a third party
claim shall provide the Indemnifying Party with written notice (an
"Indemnification Notice") of such claim (provided, however, that the
failure to give such notice shall not relieve the Indemnifying Party
of its obligations hereunder except to the extent that such failure
is materially prejudicial to the Indemnifying Party), and the
Indemnifying Party shall be entitled, at its own cost and expense and
by its own legal advisors, to control the defense of or to settle any
such third-party claim. The Indemnifying Party shall have the right
to elect to settle any such claim, for monetary damages only, subject
to the consent of the Indemnified Party; provided, however, if the
Indemnified Party fails to give such consent to a settlement that has
been agreed upon by the Indemnifying Party and the claimant in
question within 20 days of being requested to do so, the Indemnified
Party shall, assume the defense of such claim or demand and
regardless of the outcome of such matter, the Indemnifying Party's
liability hereunder shall be limited to the amount of any such
proposed settlement. If the Indemnifying Party fails to take any
action against the third-party claim that is the subject of an
Indemnification Notice within 30 days of receiving such
Indemnification Notice, or otherwise contests its obligation to
indemnify the Indemnified Party in connection therewith, the
Indemnified Party may, upon providing prior written notice to, but
without the further consent of, the Indemnifying Party settle or
defend against such third-party claim for the account and at the
expense of the Indemnifying Party. Except as set forth in this
Section 15.3, the Indemnified Party shall not enter into any
settlement or other compromise or consent to a judgment with respect
to a third party claim to which the Indemnifying Party has an
indemnity obligation without the prior written consent of the
Indemnifying Party. Each Indemnified Party shall have the right, but
not the duty, to participate in the defense of any claim with
attorneys of its own choosing and at its own cost, without relieving
the Indemnifying Party of any obligations hereunder.
15.4 Each party further agrees to indemnify, defend and hold harmless the
other from and against any and all Taxes and related assessments,
levied upon or advanced by the Indemnified Party but that ultimately
the Indemnifying Party would be responsible for paying and resulting
from any transaction or activity contemplated by this Agreement.
15.5 The rights and obligations of the parties under this Section 15 shall
survive the termination or expiration of this Agreement.
16. INSURANCE
16.1 Mesa shall procure and maintain for the benefit of Frontier during
the term of this Agreement with insurance carriers of known financial
responsibility, insurance of the type and in the amounts listed below:
a. comprehensive airline liability insurance, including
comprehensive general liability, passenger (including
Codeshared Passengers and all other revenue and non-revenue
passengers), baggage, cargo, mail and aircraft third party
legal liability (all policies shall be extended to include
war risks, hijacking and allied perils), in an amount not
less than Three Hundred Million Dollars (US $300,000,000)
(or other foreign currency equivalent) per any one
occurrence, or any lesser amount traditionally carried in
the regional airline industry under similar agreements.
This insurance must be primary to the extent of the
indemnification obligations of Mesa without right of
contribution from any insurance carried by Frontier, and
shall (i) name Frontier and the other Marketing Carrier
Indemnified Parties as additional insureds, (ii) contain a
severability of interest clause and a breach of warranty
clause in favor of Frontier, and (iii) specifically insure
the Operating Carrier's indemnification obligations under
this Agreement;
x. xxxx all risk insurance, including war risk, and such policy
shall include a waiver of subrogation in favor of Marketing
Carrier to the extent of the indemnity specified in Section
15.1; and
c. Workers' compensation and employers' liability insurance
or such other similar or equivalent insurance carried outside
of the United States, in accordance with statutory limits.
16.2 Frontier shall procure and maintain for the benefit of Mesa during
the term of this Agreement with insurance carriers of known financial
responsibility, insurance of the type and in the amounts listed below:
a. comprehensive airline liability insurance, including
comprehensive general liability, passenger (including
Codeshared Passengers and all other revenue and non-revenue
passengers), baggage, cargo, mail and aircraft third party
legal liability (all policies shall be extended to include
war risks, hijacking and allied perils), in an amount not
less than Three Hundred Million Dollars (US $300,000,000)
(or other foreign currency equivalent) per any one
occurrence. This insurance must be primary to the extent of
the indemnification obligations of Frontier without right of
contribution from any insurance carried by Mesa, and shall
(i) name Mesa and the other Operating Carrier Indemnified
Parties as additional insureds, (ii) contain a severability
of interest clause and a breach of warranty clause in favor
of Mesa, and (iii) specifically insure Frontier's
indemnification obligations under this Agreement;
x. xxxx all risk insurance, including war risk, and such policy
shall include a waiver of subrogation in favor of Operating
Carrier to the extent of the indemnity specified in Section
15.1; and
c. workers' compensation and employers' liability insurance or
such other similar or equivalent insurance carried outside
of the United States, in accordance with statutory limits.
16.3 Both Mesa and Frontier shall provide to each other certificates of
insurance evidencing the required coverage within five (5) Business
Days after the effective date of this Agreement and thereafter within
five (5) days of the date of any renewal of such coverage. The
certificates must indicate that the above coverage shall not be
canceled or materially altered without thirty (30) days' advance
written notice to either party and that either party shall be
notified of any expiration or renewal of such coverage. The notice
period in respect of war and allied perils coverage shall be 7 days
or such lesser period as is or may be available in accordance with
policy conditions.
16.4 Family Assistance. The carriers and their insurers shall endeavor to
cooperate in post-accident handling to mutually ensure that the
families of accident victims are treated with the dignity, respect
and financial assistance to which they are entitled. All parties
will act in the spirit of good faith and reasonableness. Cooperation
among all parties shall not be unreasonably withheld.
The Operating Carrier shall be responsible for performing, and incur
all associated costs with respect to, all emergency response
activities at the accident scene and all Family Assistance Activities
as required by law (Aviation Disaster Family Assistance Act of 0000 -
00 X.X.X. 0000 and 41113.) or usual custom and practice.
The Operating Carrier and its insurers agree to be responsible for
the following:
a. Costs of defense;
b. All associated post-accident expenses mandated by local and
international law and industry agreements;
c. Indemnification to the Marketing Carrier for reasonable
services for which the Operating Carrier contracts
d. Safety audits and analyses; and
e. Limits of liability coverage to the extent to which the Marketing
Carrier has agreed to in its tariffs or conditions of contract.
17. TAXES
17.1 Each party shall be responsible for any net or gross income or
franchise taxes (or taxes of a similar nature) on the revenues or
income or any measure thereof which is attributable to it in
connection with the sale of air transportation pursuant to this
Agreement. Each party shall be responsible for and pay such taxes on
the portion of such revenues or income attributable to it in relation
to any interline service charge.
17.2 Frontier (if it is the Ticketing Carrier) shall collect, except as
otherwise prohibited by law, all Ticket Taxes relating to tickets
sold or travel documents issued by it with respect to air transport
pursuant to this Agreement.
18. FORCE MAJEURE
Except with respect to the performance of payment obligations under this
Agreement, neither party shall be liable for delays in or failure to perform
under this Agreement to the extent that such delay or failure (an "Excusable
Delay") (a) is caused by any act of God, war, natural disaster, strike,
lockout, labor dispute, work stoppage, fire, serious epidemic or quarantine
restrictions, act of government or any other cause, whether similar or
dissimilar beyond the control of that party; and (b) is not the result of that
party's lack of reasonable diligence. If an Excusable Delay continues for 20
consecutive days or any 30 days out of any 45-day period, the non-delayed
party shall have the right, at its option to terminate this Agreement by
giving the delayed party at least 30 days' prior written notice.
19. GOVERNING LAW
19.1 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of Colorado (without regard to
its conflict of laws principles thereof ) including all matters of
construction, validity and performance.
20. COVENANT TO COMPLY WITH ALL LAWS
20.1 In performing its obligations under this Agreement, each party shall,
at its own cost and expense, fully comply with, and have all licenses
under, all applicable federal, state, provincial and local laws of
the United States, including rules and regulations promulgated by the
U.S. National Transportation Safety Board, Department of
Transportation, U.S. Federal Aviation Administration and the U.S.
Department of Defense.
20.2 If either party has notice that a provision of this Agreement is
contrary to any applicable laws or governmental regulations, that
party shall immediately notify the other party in writing, such
notice to include a description of the perceived violation of
regulation and supporting written materials that facilitate the other
party's investigation of such perceived violation.
21. PUBLICITY
Except as required by applicable law, neither party may issue any written
press release concerning this Agreement without the prior written consent of
the other party (which consent shall not be unreasonably withheld or delayed).
22. CONFIDENTIALITY
22.1 Except as necessary to obtain any Government Approvals or as
otherwise provided below, each party shall ensure that its directors,
officers, employees, Affiliates, and professional advisors
(collectively, the "Representatives"), at all times, maintain strict
confidence and secrecy in respect of all Confidential Information of
the other party (including its Affiliates) received directly or
indirectly as a result of this Agreement. If a party (the
"Disclosing Party") is requested to disclose any Confidential
Information of the other party (the "Affected Party") under the terms
of a subpoena or order issued by a court or governmental body, it
shall (a) notify the Affected Party immediately of the existence,
terms and circumstances surrounding such request, (b) consult with
the Affected Party on the advisability of taking legally available
steps to resist or narrow such request and (c) if any disclosure of
Confidential Information is required to prevent the Disclosing Party
from being held in contempt or subject to other legal penalty,
furnish only such portion of the Confidential Information as it is
legally compelled to disclose and use commercially reasonable efforts
(at the cost of the party whose Confidential Information is being
protected) to obtain an order or other reliable assurance that
confidential treatment shall be accorded to the disclosed
Confidential Information. Each party agrees to transmit Confidential
Information only to such of its Representatives as required for the
purpose of implementing and administering this Agreement, and shall
inform such Representatives of the confidential nature of the
Confidential Information and instruct such Representatives to treat
such Confidential Information in a manner consistent with this
Section 22.1.
22.2 Within 90 days after the termination of this Agreement, each of
Frontier and Mesa shall, either deliver to the other party or destroy
all copies of the other party's Confidential Information in its
possession or the possession of any of its representatives
(including, without limitation, any reports, memoranda or other
materials prepared by such party or at its direction) and purge all
copies encoded or stored on magnetic or other electronic media or
processors, unless and only to the extent that the Confidential
Information is necessary for the continued administration and
operation of such party's programs or is reasonably necessary in
connection with the resolution of any dispute between the parties.
22.3 Each party acknowledges and agrees that in the event of any breach of
this Section 22, the Affected Party shall be irreparably and
immediately harmed and could not be made whole by monetary damages.
Accordingly, it is agreed that, in addition to any other remedy at
law or in equity, the Affected Party shall be entitled to an
injunction or injunctions (without the posting of any bond and
without proof of actual damages) to prevent breaches or threatened
breaches of this Section 22 and/or compel specific performances of
this Section 22.
22.4 The confidential obligations of the parties under this Section 22
shall survive the termination or expiration of this Agreement.
23. ASSIGNMENT
None of the parties may assign or otherwise convey or transfer any of its
rights under this Agreement, or delegate or subcontract any of its duties
hereunder, without the prior written consent of the other party.
24. SEVERABILITY
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable under the law of any jurisdiction, such provision shall be
severed from this Agreement from the jurisdiction in question and shall not
affect the legality, validity or enforceability of the remaining provisions of
this Agreement nor the legality, validity or the enforceability of such
provision under the law of any other jurisdiction; unless in the reasonable
opinion of either party, any such severance affects the commercial basis of
this Agreement, in which case the party shall so inform the other party and
the parties shall negotiate to agree upon modification of this Agreement so as
to maintain the balance of the commercial interests of the parties. If,
however, such negotiations are not successfully concluded within 90 days from
the date a party has informed the other that the commercial basis has been
affected, either party may terminate this Agreement by giving at least 30
days' prior written notice to the other party.
25. EXCLUSIVITY
25.1 Mesa has the sole and exclusive right to operate Codeshared Flights
using regional jet aircraft on behalf of Frontier during the term of this
Agreement. In consideration of Mesa's exclusive regional jet codeshare partner
air carrier status, Mesa shall have the right of first refusal to institute
any new services (cities or flights) that are forecasted to be profitable by
Frontier. Depending on the availability of equipment, such services shall be
inaugurated no later than eighteen months following the recommendation by
Frontier. Frontier may not request service to more than two markets in any six
calendar month period. For purposes of this Agreement, "Six Calendar Month
Period" means each period commencing on January 1 and ending on June 30 and
commencing on July 1 and ending on December 30, with the first Six Month
Calendar Month commencing on January 1, 2003. If Mesa declines to provide the
requested service, Frontier shall have the right to contract with another
carrier to operate that route with the F9 code, provided that the market shall
be the same as proposed to Mesa. Mesa shall have thirty (30) days from the
time it is offered the additional agreement to accept or decline such
opportunity.
25.2 Mesa Minimum Service Routes. Mesa shall have the right to operate no
less than fifty percent (50%) of the frequencies in the Minimum
Servcie Routes. Froniter must give at least six (6) months notice to
Mesa of its intent to replace Mesa's service with it's own service on
Minimum Service Routes. If Mesa desires to increase frequency in a
Minimum Service Routes and Frontier is already providing service in
such market, Mesa must receive written approval from Frontier (no
later than 90 days) prior to implementing the service. If Frontier
requests Mesa to increase frequency in a Mesa Minimum Service Route,
Mesa shall have six months to increase service. In the event that
Mesa fails to increase service in such market, Mesa shall only retain
the ability to continue its service at then current level.
25.3 Other than as explicitly set forth in Sections 25.1, 25.2 and 25.5
this Agreement is non-exclusive and does not preclude any party from
entering into or maintaining marketing relationships, including
code-sharing, with other carriers.
25.4 Non-Mesa Exclusive Routes. Mesa shall have the right to operate
aircraft utilizing the "F9*" code on markets designated as Non-Mesa
Exclusive Xxxxxx.Xxxxxxxx must give Mesa three months notice prior to
entering or operating additional service on a non-Mesa Exclusive
Route currently serviced by Mesa. Should Frontier begin service in a
Non-Mesa Exclusive Route, Frontier shall have the right to remove the
"F9*" code from the Mesa operated flights. . Frontier may request
that Mesa operate concurrently in a non-Mesa Exclusive Route, Mesa's
ability to operate concurrently in that market may be revoked by
Frontier with a minimum of three months advance written notice.
25.5 Except for codeshare agreements with America West Airlines, Inc., USAirways,
Inc. and Midwest Express Airlines, Inc., Mesa agrees not to enter
into another codeshare agreement with a carrier hubbed in Denver for
markets served by Frontier that originate or end in Denver, Colorado.
25.6 On flights where Mesa operates under the F9* code, Mesa may not
operate flights under another code other than the "YV" code.
26. RELATIONSHIP OF PARTIES
The relationship between Mesa and Frontier shall be that of independent
contractors. Each of Mesa and Frontier shall not have and shall not represent
to any other person that it has, any power, right or authority to bind the
other, or to assume, or create, any obligation or responsibility, express or
implied, on behalf of the other, except as expressly required by this
Agreement or as otherwise permitted in writing. Nothing in this Agreement
shall be construed to create between Mesa and Frontier and/or their respective
Representatives any partnership, joint venture, employment relationship,
franchise or agency.
27. FURTHER ASSURANCES
Each party shall perform such further acts and execute and deliver such
further instruments and documents at such party's costs and expenses as may be
required by applicable law, rules or regulations or as may be reasonably
requested by the other to carry out and effectuate the purposes of this
Agreement.
28. MISCELLANEOUS
28.1 This Agreement contains the entire agreement between the parties
relating to its subject matter, and supersedes any prior
understandings or agreements between the parties regarding the same
subject matter. This Agreement may not be amended or modified except
in writing signed by a duly authorized representative of each party.
28.2 Unless otherwise expressly required in this Agreement, all notices,
reports, invoices and other communications required or permitted to
be given to or made upon a party to this Agreement shall be given in
accordance with the procedures set forth in the Procedures Manual.
28.3 All rights, remedies and obligations of the parties hereto shall
accrue and apply solely to the parties hereto and their permitted
successors and assigns; there is no intent to benefit any third
parties, including the creditors of either party.
28.4 This Agreement may be executed and delivered by the parties in
separate counterparts, each of which when so executed and delivered
shall be an original, but all of which taken together shall
constitute one and the same instrument.
28.5 No failure to exercise and no delay in exercising, on the part of any
party, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof of the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law. The failure of any
party to insist upon a strict performance of any of the terms or
provisions of this Agreement, or to exercise any option, right or
remedy herein contained, shall not be construed as a waiver or as a
relinquishment for the future of such term, provision, option, right
or remedy, but the same shall continue and remain in full force and
effect. No waiver by any party of any term or provision of this
Agreement shall be deemed to have been made unless expressed in
writing and signed by such party.
28.6 This Agreement is the product of negotiations between Frontier and
Mesa, and shall be construed as if jointly prepared and drafted by
them, and no provision hereof shall be construed for or against any
party by reason of ambiguity in language, rules of construction
against the drafting party, or similar doctrine.
28.7 NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS OR LOST
PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM ANY PERFORMANCE OR
FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF SUCH PARTY KNOWS OR
SHOULD HAVE KNOW OF THE POSSIBILITY THEREOF, AND EACH PARTY HEREBY
RELEASES AND WAIVES ANY CLAIMS AGAINST THE OTHER PARTY REGARDING SUCH
DAMAGES. FOR THE AVOIDANCE OF DOUBT, THE PARTIES AGREE THAT THE
FOREGOING SHALL NOT LIMIT A PARTY'S OBLIGATION TO INDEMNIFY THE OTHER
IN ACCORDANCE WITH SECTION 16 FOR DAMAGES ARISING OUT OF OR RELATING
TO CLAIM, SUIT OR CAUSE OF ACTION BY A THIRD PARTY.
28.8 Unless otherwise expressly set forth in this Agreement, all notices,
reports, invoices and other communications required hereunder to be
given to or made upon any party shall be in writing, shall be addressed
as provided below and shall be considered as properly given and received
(i) when delivered, if delivered in person (and a signed acknowledgment of
receipt is obtained); (ii) one Business Day after dispatch if
dispatched by a recognized express delivery service which provides
signed acknowledgments of receipt; or (iii) three Business Days after
deposit in the U.S. mail, if sent by certified or registered first
class mail, postage prepaid, return receipt requested. For the
purposes of notice, the addresses of the parties shall be as set
forth below; provided, however, that either party shall have the
right to change its address for notice to any other location by
giving at least three Business Days prior written notice to the other
party in the manner set forth above.
If to Frontier:
0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Vice President- Marketing and Planning
Phone: 720/000-0000
Facsimile: 720/374-4375
with a copy to Attention: General Counsel
If to Mesa:
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President - Planning
Phone: 602/000-0000
Facsimile: 602/685-4350
with a copy to Attention: General Counsel
28.9 Each carrier shall have the right, at its own cost, to inspect,
review, and observe the other carrier's operations of Codeshared
Flights, and/or to conduct a full safety and/or service audit of the
other carriers operations, manuals and procedures reasonably related
to the Codeshared Flights, at such intervals as each carrier shall
reasonably request. In the exercise of such right, neither carrier
shall undertake any responsibility for the performance of the other's
operations. Each carrier shall carrier shall coordinate it's safety
and service audits with the other so as to avoid disruptions of the
other carrier's operations. Any safety audit may include, without
limitation, maintenance and operation procedures, crew planning,
reservations, passenger and baggage handling, customer service,
personnel records, spare parts, inventory records, training records
and manuals, flight training and operational records.
IN WITNESS WHEREOF, the day authorized representatives of the parties have
executed this Agreement as of the date first indicated above.
FRONTIER AIRLINES, INC. MESA AIRLINES, INC.
By: ___________________________ By: ________________________
Name: ___________________________ Name: _______________________
Title: ___________________________ Title: ______________________
Attachments:
Annex A - Definitions
Annex B - Codeshared Flights
Annex C - Mesa Mininum Service Markets and Mesa Exclusive Routes
ANNEX A
DEFINITIONS
"ACH" means Airlines Clearing House, Inc., a clearing house which administers and
implements revenue settlement between carriers by reference to ACH's Manual of
Procedure.
"Affiliate" means with respect to any person or entity, any other person or entity
directly or indirectly controlling, controlled by, or under common control with, such
person or entity. For purposes of this definition, "control" (including "controlled
by" and "under common control with") means the power directly or indirectly, to direct
or cause the direction of the management and policies of such person or entity,
whether through the ownership of voting securities, by contract or otherwise.
"Airline Guides" means the printed and electronic data versions of the "Official
Airline Guide" and its respective successor.
"ATA" means the Air Transport Association.
"Business Day" means any day other than a Saturday, Sunday or other day on which
banking institutions in New York, New York are required by law, regulation or
executive order to be closed.
"Codeshared Flights" means all flights operated by Mesa which carry the Frontier "F9"
flight designator code. Such flights shall be established by mutual agreement, and
specifically include services operated on Mesa Exclusive Routes and Mesa Minimum
Service Routes. The currently agreed routes for all such flights are listed in Annex
B; routes may be added or deleted from Annex B upon mutual agreement of Frontier and
Mesa and shall be reflected in a signed written amendment to Annex B.
"Codeshared Passenger" means a passenger traveling on a Marketing Carrier Ticket.
"Codeshared Services" means the actual transportation of passengers on Codeshared
Flights per this Agreement.
"Conditions of Carriage" means those tariffs and rules of carriage of a party that
govern the transport of passengers traveling on tickets showing such party's two
letter flight designator code in the carrier code box of the flight coupon.
"Confidential Information" means (a) all confidential or proprietary information of a
party, including, without limitation, trade secrets, information concerning past,
present and future research development, business activities and affairs, finances,
properties, methods of operation, processes and systems, customer lists, customer
information (such as passenger name record or "PNR" data) and computer procedures and
access codes; and (b) the terms and conditions of this Agreement and any reports,
invoices or other communications between the parties given in connection with the
negotiation or performance of this Agreement; and (c) excludes (i) information already
in a party's possession prior to its disclosure by other party; (ii) information
obtained from a third person or entity that is not prohibited from transmitting such
information to the receiving party as a result of a contractual, legal or fiduciary
obligation to the party whose information is being disclosed; (iii) information that
is or becomes generally available to the public, other than as a result of disclosure
by a party in violation of this Agreement; or (iv) information that has been or is
independently acquired or developed by a party, or its Affiliate, without violating
any of its obligations under this Agreement.
"CRS" means a computerized reservations system owned or operated by any entity,
including either party to this Agreement, that contains information about commercial
airline schedules, fares, cargo rates, passenger and cargo tariff rules and flight
availability that is made available to travel agents, cargo agents, and other
non-airline entities to facilitate their ability to make reservations and issue
tickets and air waybills.
"Damages" means all claims, suits, causes of action, penalties, liabilities,
judgments, fines, losses and expenses of any nature or kind whatsoever under the laws
of any jurisdiction (whether arising in tort, contract, under the Warsaw Convention
and related instrument, or otherwise), including reasonable costs and expenses of
investigating, preparing or defending any claim, suit, action or proceeding (including
post judgment and appellate proceedings or proceedings that are incidental to the
successful establishment of a right of indemnification), such as reasonable attorneys'
fees and fees for expert witnesses, consultants and litigation support services, but
not including internal expenses of the indemnified party, such as employee salaries
and the costs of cooperating in the investigation, preparation or defense of claims.
"IATA" means the International Air Transport Association.
"ISC" means the Interline Service Charge. The Interline Service Charge (ISC), as
determined and published by the ACH, is the percentage charged on an interline billing
to reimburse the billing carrier for travel agent commission they paid on the ticket
when it was reported to the Airlines Reporting Corporation (ARC). Due to the various
commission rates paid by all carriers, ARC looks at the amount of commission paid and
the base fare of all tickets reported to them and this determines the ISC rate charged
for the following three months. An Airlines Clearing House (ACH) memo is distributed
to all participating carriers quarterly to inform them whether or not this average
commission percentage changes or not.
"Marketing Carrier Ticket" means a ticket issued by Frontier, Mesa or a third party
for travel on a Codeshared Flight showing Frontier' two letter flight designator code
in the carrier code box of the flight coupon.
"Marketing Flight(s)" means a Codeshared Flight when shown only as a flight of Frontier.
"Mesa Exclusive Routes" means routes to and from Denver where Mesa shall have the sole
and exclusive right to operate flights using the F9 code. Frontier shall not introduce
any flights under the F9 code using Frontier aircraft (or any other operator) on Mesa
Exclusive Routes without Mesa's express written permission, which permission may be
withheld for any reason at Mesa's complete and total discretion. Mesa Exclusive
Routes are listed in Annex C; routes may be added or deleted from Annex C only upon
mutual agreement of Frontier and Mesa and shall be reflected in a signed written
amendment to Annex C.
"Mesa Minimum Service Routes" means routes to and from Denver where Mesa shall have
the right to operate at least fifty percent (50%) of all flights operating under the
F9 code. For example, if the market from BOI to DEN has three flights per day, Mesa
shall be entitled to operate two of the three flights. Mesa Minimum Service Routes
are listed in Annex C; subject to the provisions of Section 25.2 of this Agreement,
routes may be added or deleted from Annex C only upon mutual agreement of Frontier and
Mesa and shall be reflected in a signed written amendment to Annex C.
"Operating Carrier" means the party having operational control of an aircraft used for
a given Codeshared Flight.
"Procedures Manual" means a detailed procedures manual prepared by the parties for
implementing the transactions contemplated by this Agreement.
"Reservations System" means the internal computerized airline passenger or cargo
reservations system used by the personnel of an airline that contains information
about flight schedules, fares, cargo rates, passenger and cargo tariff rules and seat
availability of that airline and other carriers, and provides the ability to make
reservations and issue tickets or air waybills.
"Ticketing Carrier" means a carrier whose traffic documents are used to issue a ticket.
"Ticket Taxes" means any transactional taxes or passenger facility charges, including,
without limitation, sales taxes, use taxes, stamp taxes, excise taxes, value added
taxes, gross receipt taxes, departure taxes, surcharges and travel taxes, and all
related charges, fees, licenses or assessments (and any interest or penalty thereon)
imposed by any authority in any country, or political subdivision thereof or public
authority operating therein (including, without limitation any national, federal,
state, provincial, territorial, local, municipal, port or airport authority) or levied
upon it by operation of applicable law, or industry standard. Ticket Taxes together
with the taxes referred to in Section 18 are hereinafter collectively referred to as
"Taxes".
"$" or USS" or "Dollars" means lawful currency of the United States of America.
ANNEX B
CODESHARED FLIGHTS IMPLEMENTATION DATE
Between Denver and:
ANNEX C
MESA MINIMUM SERVICE ROUTES
Between Denver and:
Billings, MT (BIL)
Eugene, OR (EUG)
Boise, ID (BOI)
Tulsa, OK (TUL)
Spokane, WA (GEG)
Milwaukee, WI (MKE)
Oklahoma City, OK (OKC)
MESA EXCLUSIVE ROUTES
Between Denver and:
Burbank, CA (BUR)
Cedar Rapids, IA (CID)
Des Moines, IA (DSM)
Fargo, ND (FAR)
Fresno, CA (FAT)
Wichita, KS (ICT)
Little Rock, AR (LIT)
Memphis, TN (MEM)
Madison, WI (MSN)
Palm Springs, CA (PSP)
Santa Barbara, CA (SBA)
