Exhibit 10.34
FORM OF AMENDED AND RESTATED
SERVICES AGREEMENT
This Amended and Restated Services Agreement (the "Agreement") is made this
___ day of ______, 2005, by and between CONTINENTAL AIRLINES, INC. (together
with its Affiliates, "Continental"), a corporation duly organized and validly
existing under the laws of the State of Delaware, U.S.A., with its principal
office at 0000 Xxxxx Xx., Xxxxxxx, Xxxxx, X.X.X. 00000, and COMPANIA PANAMENA DE
AVIACION, S.A. (together with its Affiliates, "COPA"), a corporation (sociedad
anonima) duly organized and validly existing under the laws of the Republic of
Panama, with its principal office at Ave. Xxxxx Xxxxxxxxx y Xxxxx 00, Xxxxxxxx
0000, Xxxxxx 0, Xxxxxx. Continental and COPA are herein referred to as the
"Carriers".
RECITALS
Continental and COPA are each certificated air carriers providing air
transportation services with respect to both passengers and cargo in their
respective areas of operation.
Continental and COPA Holdings, S.A. a Panamanian corporation (sociedad
anonima) have, as of the date hereof entered into an Amended and Restated
Alliance Agreement ("Alliance Agreement") a Registration Rights Agreement
("Registration Rights Agreement") and an Amended and Restated Shareholders
Agreement ("Shareholders Agreement"). In connection with such agreements, COPA
desires that Continental make available to COPA certain services that are
necessary or advisable for the operation of a commercial air carrier and
services that are necessary or advisable for the operation of a commercial air
carrier and Continental is willing to provide COPA such services in accordance
with the terms and conditions of this Agreement.
Continental and COPA are each a party to the "Services Agreement" made the
22nd of May, 1998 and each agree to enter into this Agreement as an amended and
restated version of the Services Agreement.
Continental and COPA are each a party to the Amended and Restated Alliance
Agreement (as amended, the "Alliance Agreement") entered into on the date
hereof.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, Continental and COPA hereby agree as follows:
1. Cost Reduction Initiatives. Subject to the terms and conditions set forth
in this Agreement, Continental will provide services as set forth below in
Section 2(a) through (m) of this Agreement pursuant to separate agreements.
Current agreements between the Carriers with respect to the services identified
in Section 2(a) through (m) are listed on Schedule 1 hereto. Any agreements to
be negotiated in the future will be
negotiated at arms-length, will contain mutually acceptable provisions typically
applicable to such agreements, will not necessarily be coterminous with this
Agreement, will not contain any cross-default clauses with respect to this
Agreement or the Shareholders Agreement, will not permit COPA to transfer
services and equipment to third parties and will adequately address COPA's
concern that it have notice of termination of the agreements sufficient enough
to allow COPA to transition to alternative service providers. Unless otherwise
stated, services will be provided as follows:
(a) Services provided directly by Continental to COPA. Upon reasonable
request by COPA, Continental will provide the services specified in Section 2
below to COPA, as permitted by Continental's applicable contracts. Except as
otherwise provided herein, services provided to COPA directly by Continental
will be priced at Continental's Incremental Cost as defined below.
(b) Services provided by a third party. Wherever contractually permitted
(except as otherwise provided herein), Continental will provide COPA access to
the same third party vendor arrangements as are available to Continental at the
cost charged to Continental, plus any additional costs incurred by Continental,
provided that such access will not adversely impact Continental with respect to
pricing or availability. For current contracts under which COPA does not have
access, and for future contracts as appropriate, Continental will use
commercially reasonable efforts to permit COPA to obtain the same benefits as
Continental under such contracts, provided doing so will not adversely impact
Continental.
(c) Incremental Cost. As used in this Agreement "Incremental Cost" shall
mean the additional direct cost incurred by a Carrier to provide a good or
service to the other Carrier, plus a pro-rata allocation of the providing
Carrier's cost for fixed capital and intangibles (including depreciation,
amortization and interest), overhead (including labor burden and facilities)
associated with the activity providing the good or service and a percentage of
the providing Carrier's corporate overhead equal to the percentage that the
charges to the receiving Carrier for the good or service are of the providing
Carrier's total expenses for the preceding fiscal year, but excluding any profit
or xxxx-up. The intention of this Agreement is that those goods and services
charged at Incremental Cost shall be provided by a Carrier to the other Carrier
without the providing Carrier's incurring a profit or loss with respect thereto.
(d) Services Contractually Permitted. For purposes of this Agreement,
"contractually permitted" means either that the providing Carrier has the
contractual ability to require its counterparty to offer the relevant goods or
services to the other Carrier on the relevant terms, or that the relevant
contract does not prohibit the provision of such services on such terms, and the
providing Carrier's counterparty is willing to provide such services on such
terms. The obligation of Continental to provide services or access to the
benefits of its contracts to COPA shall be subject to contractual limitations to
which Continental is subject; provided, however, that Continental will use its
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commercially reasonable efforts to obtain a waiver of any such contractual
limitations which prevent Continental from passing along any material benefit to
COPA.
(e) Financing Limitations. To the extent that any of the services provided
pursuant to Section 2 hereof require a capital expenditure or the financing of
materials, services or equipment, Continental shall not be required to
participate in any financing structure that (i) causes the materials, services
or equipment, or any financial obligation with respect thereto, to be included
on Continental's balance sheet, (ii) may, based on Continental's reasonable
judgment, adversely affect Continental's future financing costs, or (iii)
imposes any uncompensated financial obligation on Continental, including
following the transfer of the materials, services or equipment (whether by
purchase, assignment or lease) to COPA; provided that nothing in this Section
shall be construed to relieve Continental of any obligations to provide services
under this Agreement if such capital expenditure or financing of materials,
services or equipment is undertaken by COPA.
(f) Reciprocity by COPA. To the extent that COPA is able to provide
services or access to the benefits of its contracts to Continental of a similar
nature as is set forth in Section 2 hereof, it shall, upon the request of
Continental, provide such benefits to Continental on comparable terms (including
Section 1(c)) as are set forth herein.
2. Services To Be Provided. Subject to Section 1, Continental will offer
and, subject to COPA's request, provide the following services:
(a) Purchase of Equipment. Continental will advise COPA of intended future
large acquisitions of flight and ground equipment and will use its commercially
reasonable efforts to have the capacity requirements of COPA included in the
procurement by Continental, so long as such inclusion would not have a material
adverse affect on Continental's transaction (e.g. because of unwillingness of
vendors to disclose Continental pricing to any other airline). COPA understands
that most of Continental's current major equipment purchase agreements have
non-disclosure requirements. In addition, the calculation of Continental's cost
for a particular piece of equipment will depend on its delivery date, the source
(from manufacturer or lessor) and type of financing. Pursuant and subject to
Section 1, COPA shall be free to seek such equipment from other sources, and, if
requested by COPA, Continental will provide assistance in evaluating such
alternative procurement. In addition, Continental will assist in the execution
of COPA's fleet growth and replacement plan as follows:
A. Continental will use its commercially reasonable efforts to
ensure no increase in the discrepancy between COPA's and Continental's
pricing on Boeing 737 NG flight equipment.
B. In the event that the sale of any unused and expiring Continental
Options to COPA would yield a lower net purchase price to
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COPA, Continental agrees to offer such option aircraft for sale to COPA on
commercially reasonable terms.
C. In the event that Continental agrees to acquire Embraer 190
Family flight equipment, Continental will use its commercially reasonable
efforts to ensure that COPA benefits from the economy of scale that a
combined order would afford on any undelivered EMB 170/175/190/195
aircraft.
(b) Ground Equipment. Where contractually permitted, COPA shall have
access to the prices and delivery available to Continental for ground equipment,
provided that such access will not adversely impact Continental. Continental
will use commercially reasonable efforts to assist COPA in obtaining financing
terms with respect to purchases of ground equipment by or on behalf of COPA that
are comparable to Continental's.
(c) Insurance. At the request of COPA, COPA shall be included in
Continental's insurance coverage of all types to the extent commercially
reasonable. Continental shall permit COPA to continue to obtain the insurance
benefits associated with Continental's superior size and expertise, unless and
until it is no longer commercially reasonable to do so.
(d) Fuel. The Carriers shall provide each other with the benefits of
each other's fuel-purchase arrangements.
(e) Management Information and Related Systems and Data. The Carriers
shall provide each other with their respective applicable capabilities and
information relating to management information and related systems to the extent
contractually permitted. This applies to pricing, yield management, distribution
planning, reservations, departure control, E-ticketing, flight scheduling, crew
scheduling, personnel management and evaluation, passenger and cargo revenue
accounting, general accounting, computer reservation system analysis, quality
monitoring, maintenance support, fleet planning, flight profitability, treasury
support, group management, sales planning, U.S. GSA Support, marketing planning
information, DOT database analysis, frequent flyer program, technical support
and other systems.
(f) Reservations, Departure Control, and Operational Control. At the
request of COPA, assistance with reservations, departure control and operational
control functions shall be provided by Continental to COPA.
(g) Training. At the request of COPA, training shall be provided to
COPA by Continental that involves both technical areas (e.g., maintenance, crew
resource management, simulator access, and crew training) and other areas (e.g.,
salesmanship, negotiating skills, personnel evaluation).
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(h) Catering. At the request of COPA, COPA shall receive access to
Continental's catering and on-board supply contracts.
(i) Employee Exchanges. At the request of COPA, Continental shall
provide COPA a reasonable number of qualified staff in key areas to facilitate
implementation and knowledge and capability transfer. Included in the resources
provided by Continental will be a reasonable number of qualified management
personnel who will, unless otherwise agreed, be assigned to COPA for a period of
not less than two years and will collectively be knowledgeable in the areas of
yield management, maintenance and engineering, marketing and sales, flight
operations and passenger services.
(j) Accounting and Administrative. At the request of COPA, Continental
shall provide COPA with accounting and administrative support services. This
also includes access to credit card processing arrangements, commission levels,
bank settlement plan participation, surety bonds and other items.
(k) Maintenance of Aircraft, Engines, and Components. Upon COPA's
request, Continental shall integrate COPA's fleet into Continental's maintenance
program. Maintenance, quality assurance, planning, and engineering services
performed substantially by Continental will be charged to COPA at Continental's
Incremental Cost.
(l) General Purchasing of Goods and Services. Continental shall
undertake to include COPA in access to rates, terms, and availability of other
applicable goods and services reasonably requested by COPA. Continental will use
commercially reasonable efforts to assist COPA to obtain financing terms with
respect to purchases by or on behalf of COPA that are comparable to
Continental's.
(m) Other (telecommunications, etc.). Upon COPA's request, Continental
shall provide COPA access to its rates, terms, networks, and other
telecommunications services and facilities.
3. Most-favored nations. Except as otherwise expressly set forth in this
Agreement, all services, supplies, training, products and any other assistance
covered by this Agreement, including, but not limited to, technical, personnel,
aviation services and supply assistance (the "Assistance"), which Continental or
its Affiliates shall provide to COPA shall be provided at Continental's or its
Affiliates' Incremental Cost of providing such Assistance, but in no case will
COPA be required to pay more than the price that Continental or its Affiliates
is at the time providing such Assistance to any other non-majority owned airline
after giving effect to the existence, if any, of cross-subsidy arrangements
involving multiple service provided to and received from such other airline. In
the event that COPA can obtain similar or more favorable Assistance from a third
party at a lower price or with more favorable terms, COPA shall be permitted to
purchase such Assistance from such third party, subject to the provisions of any
agreements between Continental and COPA with respect thereto. Also, Continental
and its Affiliates
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shall use their commercially reasonable efforts to assure that COPA is the
beneficiary of the most favorable prices and terms that Continental or its
Affiliates can obtain for themselves via their externally provided resources.
Continental shall have no obligation to extend the benefits of this Agreement to
COPA's Affiliate, Aerorepublica, S.A., or any Affiliate acquired or created
after the date hereof, unless COPA is, and only for so long as they remain, the
record and beneficial owner of at least eighty-five percent (85%) of the capital
stock of such Affiliate, calculated on a fully diluted basis. If COPA has an
Affiliate that no longer qualifies for the benefits of this Agreement,
Continental and COPA shall, upon COPA's request, discuss the possibility of such
Affiliate being included under this Agreement.
4. Sharing of resources during the term of the Agreement. Within a
reasonable time after the date of this Agreement and subject to Continental's
contractual obligations, and subject to the negotiation of satisfactory
confidentiality and use agreements, Continental shall share with COPA its
expertise and know-how reasonably requested by COPA in the form of, but not
limited to, manuals, procedures, automation, training and systems, necessary or
desirable for COPA to provide the same options and services with the same
quality that Continental provides; provided, however, that such expertise and
know-how shall be provided to COPA at Continental's Incremental Cost.
5. Independent Parties.
(a) Independent Contractors. It is expressly recognized and agreed that
each Carrier, in its performance and otherwise under this Agreement, is and
shall be engaged and acting as an independent contractor and in its own
independent and separate business; that each Carrier shall retain complete and
exclusive control over its staff and operations and the conduct of its business;
and that each Carrier shall bear and pay all expenses, costs, risks and
responsibilities incurred by it in connection with its obligations under this
Agreement. Neither Continental nor COPA nor any officer, employee,
representative, or agent of Continental or COPA shall in any manner, directly or
indirectly, expressly or by implication, be deemed to be in, or make any
representation or take any action which may give rise to the existence of, any
employment, agent, partnership, of other like relationship as regards the other,
but each Carrier's relationship as respects the other Carrier in connection with
this Agreement is and shall remain that of an independent contractor.
(b) Status of Employees. The employees, agents and/or independent
contractors of COPA shall be employees, agents, and independent contractors of
COPA for all purposes, and under no circumstances shall be deemed to be
employees, agents or independent contractors of Continental. The employees,
agents and independent contractors of Continental shall be employees, agents and
independent contractors of Continental for all purposes, and under no
circumstances shall be deemed to be employees, agents or independent contractors
of COPA. Continental shall have no supervisory power or control over any
employees, agents or independent contractors employed by COPA, and COPA shall
have no supervisory power or control over any employees, agents and independent
contractors employed by Continental.
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(c) Liability For Employee Costs. Each Carrier, with respect to its own
employees (hired directly or through a third party), accepts full and exclusive
liability for the payment of worker's compensation and/or employer's liability
(including insurance premiums where required by law) and for the payment of all
taxes, contributions or other payments for unemployment compensation, vacations,
or old age benefits, pensions and all other benefits now or hereafter imposed
upon employers with respect to its employees by any government or agency thereof
or provided by such Carrier (whether measured by the wages, salaries,
compensation or other remuneration paid to such employees or otherwise) and each
Carrier further agrees to make such payments and to make and file all reports
and returns, and to do everything necessary to comply with the laws imposing
such taxes, contributions or other payments.
(d) Standard of Care; Disclaimer of Warranties; Limitation of
Liabilities. A providing Carrier's standard of care with respect to the
provision of services pursuant to this Agreement shall be limited to providing
services of the same general quality as such Carrier provides for its own
internal operations. Except for the previous sentence, neither Carrier makes any
representations or warranties of any kind, whether express or implied (i) as to
the quality or timeliness or fitness for a particular purpose of services it
provides or any services provided hereunder by third-party vendors or
subcontractors, or (ii) with respect to any supplies or other material purchased
on behalf of the receiving Carrier pursuant to this Agreement, the
merchantability or fitness for any purpose of any such supplies or other
materials. Under no circumstances shall the providing Carrier have any liability
hereunder for damages in excess of amounts paid by the receiving Carrier under
the applicable agreement or for consequential or punitive damages, including,
without limitation, lost profits.
6. Term and Termination.
(a) Term. The term of the Services Agreement, unless earlier terminated
as provided in this Section 6, shall continue until either Carrier gives the
other Carrier three (3) years' written notice of termination: provided, however,
that either Carrier may only give such notice on or after May 22, 2012. The
terms and conditions of this Amended and Restated Services Agreement are
effective as of the date first written above.
(b) Other Termination Rights. In addition to the termination provisions
of paragraph (a) of this Section 6, this Agreement, but not the individual
services agreements (which shall be terminated in accordance with their
respective terms), may be terminated as follows:
(i) By a Carrier, if the other Carrier has materially breached any
material provision of this Agreement and such breach shall remain
unremedied for more than 180 days after delivery of written notice by the
non-defaulting Carrier. During such 180day period, the Carriers shall
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consult in good faith to ensure that each of the Carriers understands the
nature of the alleged breach and what steps are required to effect a cure;
(ii) By a Carrier immediately on notice, if the other Carrier (i)
shall be dissolved or shall fail to maintain its corporate existence, or
(ii) shall have its authority to operate as a scheduled airline suspended
or revoked, or shall cease operations as a scheduled airline, in each case
for a period of 30 or more days;
(iii) By a Carrier immediately on notice if the other Carrier shall
(A) commence any case, proceeding or other action (1) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (2) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or shall make a general assignment for the benefit of its creditors; or
(B) there shall be commenced against the other Carrier any case,
proceeding or other action of a nature referred to in clause (A) above
that (1) results in the entry of an order for relief or any such
adjudication or appointment or (2) remains undismissed or undischarged for
a period of 60 days; or (C) there shall be commenced against the other
Carrier any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (D) the
other Carrier shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (A), (B), or (C) above; or (E) the other Carrier shall generally
not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due;
(iv) By either Carrier on thirty (30) days' prior written notice if
the Alliance Agreement is terminated;
(v) By either Carrier immediately on notice if the other Carrier
fails to maintain its membership in the Airline Clearing House (ACH) or
the International Air Transport Association Clearing House for a period of
ten (10) consecutive days;
(vi) By a Carrier on sixty (60) days' prior written notice if the
other Carrier materially breaches (or, in the case of Continental's right
to terminate, Corporacion de Inversiones Aereas, S.A. materially breaches)
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the terms and/or conditions of the Shareholders Agreement or the
Registration Rights Agreement and fails to cure such breach within such
sixty (60)-day notice period; provided that during such 60-day period, the
Carriers shall consult in good faith to ensure that each of the Carriers
understands the nature of the alleged breach and what steps are required
to effect a cure; and
(vii) By a Carrier on thirty (30) days' prior written notice if the
other Carrier rejects the Alliance Agreement and/or Frequent Flyer Program
Participation Agreement in a bankruptcy proceeding.
(c) Force Majeure and Termination. Except with respect to the
performance of a Carrier's payment obligations under this Agreement, neither
Carrier shall be liable for delays or failure in its performance hereunder to
the extent that such delay or failure of performance (a) is caused by any act of
God, war, terrorism, natural disaster, strike, lockout, labor dispute, work
stoppage, fire, serious accident, epidemic, quarantine restriction, act of
government, or any other cause, whether similar or dissimilar, beyond the
control of that Carrier, and (b) is not the result of that Carrier's lack of
reasonable diligence (an "Excusable Delay"). In the event an Excusable Delay
continues for sixty (60) days or longer, the non-delayed Carrier shall have the
right, at its option, to terminate this Agreement by giving the delayed Carrier
at least thirty (30) days prior written notice of such election to terminate.
(d) Duties upon termination. No termination of this Agreement will
release the parties from any liability for breach of this Agreement or from any
moneys or other duties owed at the time of such termination.
(e) Termination for Change of Control. . Notwithstanding any other
provision of this Agreement in the event of a Change of Control involving a
Carrier, the Carrier not involved in the Change of Control shall have the right
to terminate this Agreement on six (6) months' prior written notice without
liability or penalty to the Carrier involved in the Change of Control; provided,
however, the right of a Carrier to give notice to terminate with respect to a
Change of Control involving the other Carrier shall expire on the six month
anniversary of the later to occur of (i) the date the terminating Carrier
receives notice of such Change of Control from the other Carrier or (ii) the
date of the consummation of such Change of Control transaction. The following
definitions apply to the terms used in this Section 6:
"AIRLINE ASSETS" means those assets used, as of the date of
determination, in the relevant Person's operation as an air
carrier.
"BENEFICIAL OWNERSHIP" has the meaning given such term in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as
amended.
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"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, options, warrants, participation or other
equivalents of or interests in (however designated) the equity of
such Person, including any preferred stock.
"CARRIER AFFECTED COMPANY" means as to a Carrier (a) such Carrier
and its successor, (b) any Holding Company of such Carrier or its
successor, or (c) any Subsidiary of such Carrier or its successor
or of any Holding Company of such Carrier or its successor, that in
any such case owns, directly or indirectly, all or substantially
all of the Airline Assets of such Carrier or its successor, such
Holding Companies of such Carrier and such Subsidiaries, taken as a
whole.
"CHANGE OF CONTROL" shall mean, with respect to a Carrier, the
consummation of:
(1) a merger, reorganization, share exchange, consolidation, tender
or exchange offer, private purchase, business combination,
recapitalization or other transaction as a result of which (A) a
Competing Carrier or a Holding Company of a Competing Carrier and a
Carrier Affected Company are legally combined, (B) a Competing
Carrier, any of its Affiliates or any combination thereof acquires,
directly or indirectly, Beneficial Ownership of 50% or more of the
Capital Stock or Voting Power of a Carrier Affected Company, or (C)
such Carrier (or its successor), any Holding Company of such
Carrier (or its successor), or any of their respective Subsidiaries
acquires, directly or indirectly, Beneficial Ownership of 50% or
more of the Capital Stock or Voting Power of a Competing Carrier;
(2) the sale, transfer or other disposition of all or substantially
all of the Airline Assets of such Carrier (or its successor) and
its Subsidiaries on a consolidated basis directly or indirectly to
a Competing Carrier, any Affiliate of a Competing Carrier or any
combination thereof, whether in a single transaction or a series of
related transactions; or
(3) the execution by a Carrier Affected Company of bona fide
definitive agreements, the consummation of the transactions
contemplated by which would result in a transaction described in
the immediately preceding clauses (1) or (2).
"COMPETING CARRIER" means an air carrier that competes
(internationally and/or domestically) on a significant and material
basis with the Carrier that is not involved in the Change of
Control.
"HOLDING COMPANY" means, as applied to a Person, any other Person
of whom such Person is, directly or indirectly, a Subsidiary.
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"SUBSIDIARY" of any Person means any corporation, association,
partnership, joint venture, limited liability company or other
business entity of which more than 40% of the total Voting Power
thereof or the Capital Stock thereof is at the time owned or
controlled, directly or indirectly, by (1) such person, (2) such
person and one or more Subsidiaries of such Person, or (3) one or
more Subsidiaries of such Person.
"VOTING POWER" means, as of the date of determination, the voting
power in the general election of directors, managers or trustees,
as applicable.
7. Confidential Information. Neither COPA nor Continental shall disclose
the terms of this Agreement or any proprietary information with respect to the
other obtained as a result of this Agreement, either during the term hereof or
thereafter; provided, however, that such disclosure may be made if required by
applicable law, regulation or stock exchange rule, or by any order of a court or
administrative agency, and then only upon ten days' written notice by the
disclosing Carrier to the other Carrier. The Carriers recognize that, in the
course of the performance of each of the provisions hereof, each Carrier may be
given and may have access to confidential and proprietary information of the
other Carrier, including proposed schedule changes, promotional programs and
other operating and competitive information ("Confidential Information"). Each
Carrier shall preserve, and shall ensure that each of its officers, agents,
consultants and employees who receive Confidential Information preserve, the
confidentiality of the other Carrier's Confidential Information and shall not
disclose Confidential Information to a third Carrier, without prior written
consent from the other Carrier or use Confidential Information except as
contemplated by this Agreement. This Section 7 shall survive two years after the
termination or expiration of this Agreement.
8. Arbitration.
(a) Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by arbitration administered by the
Conciliation and Arbitration Center (the "CAC") an affiliate of the Panama
Chamber of Commerce in accordance with the International Arbitration Rules of
the International Chamber of Commerce Court of International Arbitration.
Judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(b) The number of arbitrators shall be three, one of whom shall be
appointed by each of the Carriers and the third of whom shall be selected by
mutual agreement, if possible, within 30 days of the selection of the second
arbitrator and, if no agreement on the third arbitrator is possible, by the CAC;
provided that unless otherwise agreed the CAC may only choose an arbitrator that
is from a country other than Panama or the United States. The place of
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arbitration shall be Miami, Florida. The language of the arbitration shall be
English, but documents or testimony may be submitted in any other language if a
translation is provided.
(c) The arbitrators shall have no authority to award punitive damages or
any other damages not measured by the prevailing Carrier's actual damages, and
may not, in any event, make any ruling, finding or award that does not conform
to the terms of this Agreement.
(d) Either Carrier may make an application to the arbitrators seeking
injunctive relief to maintain the status quo until such time as the arbitration
award is rendered or the controversy is otherwise resolved. Either Carrier may
apply to any court having jurisdiction hereof and seek injunctive relief in
order to maintain the status quo until such time as the arbitration award is
rendered or the controversy is otherwise resolved.
9. Certain Definitions.
(a) Commercially Reasonable Efforts. As used in this Agreement, the term
"commercially reasonable efforts" shall not require a Carrier to make any
uncompensated cash outlays, to accept adverse contract terms, to limit, alter,
impair or interfere with its operations, to impair any right with respect to the
use of its assets, or to otherwise adversely affect the Carrier in any
measurable manner.
(b) Affiliate. As used in this Agreement, "Affiliate" means, as applied to
a Person, any other Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For purposes of this definition
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
(c) Person. As used in this Agreement, "Person" means an individual,
partnership, corporation, business trust, joint stock company, limited liability
company, unincorporated association, joint venture or other entity of whatever
nature.
10. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York.
11. Entire Agreement, Waivers and Amendments. This Agreement and the
Alliance Agreement to the extent such agreement concerns the matters covered in
this Agreement constitute the entire understanding of the Carriers with respect
to the subject matter hereof superseding all prior discussions and agreements,
written or oral. This Agreement may not be amended, nor may any of its
provisions be waived, except by writing signed by both carriers. No delay on the
part of either carrier in exercising any right power or privilege hereunder
shall operate as a waiver hereof, nor shall any waiver operate as a continuing
waiver of any right, power or privilege.
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12. Notices. All notices given hereunder shall be in writing delivered by
hand, certified mail, telex, or telecopy to the Carriers at the following
addresses:
If to Continental:
Continental Airlines, Inc.
0000 Xxxxx Xx., HQSCD Telecopier No.: (000) 000-0000
Xxxxxxx, Xxxxx 00000
Attention: Senior Vice President-
Asia/Pacific and Corporate Development
With copy to:
Continental Airlines, Inc.
0000 Xxxxx Xx., XXXXX Xxxxxxxxxx No.: (000) 000-0000
Xxxxxxx, Xxxxx 00000
Attention: Senior Vice President
and General Counsel
If to COPA: Corporacion de Inversiones Aereas, S.A.
Ave. Xxxxx Xxxxxxxxx y Calle 39
Apdo. 1572
Xxxxxx 0, Xxxxxx
Attention: Xxxxx Xxxxxxxx
Facsimile No: 000-000-0000
With a copy to: Xxxxxxx, Xxxxx y Xxxxx
Edif. Omanco
Apartado 8629
Panama 5, Panama
Attention: Xxxxx X. Areas C.
Facsimile No.: 000-000-0000
12. Successors, Assigns. Except as otherwise provided in this Agreement,
neither carrier may assign its rights or delegate its duties under this
Agreement and any such purported assignment or delegation shall be void. This
Agreement shall be binding on the lawful successors of each carrier.
13. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions
13
hereof, and any prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
14. Headings. The headings in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
15. Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute one agreement.
16. Equal Opportunity. To the extent applicable, EEO clauses contained at
41 C.F.R. Sections 60-1.4, 60-250.4 and 60-741.4 are hereby incorporated by
reference. Each Carrier shall comply with all equal opportunity laws and
regulations which apply to or must be satisfied by that Carrier as a result of
this Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have caused this
Agreement to be executed as of the date first written above.
CONTINENTAL AIRLINES, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
COMPANIA PANAMENA DE AVIACION, S.A.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
14
Schedule 1
to the
Amended and Restated Services Agreement
Below is a list of agreements between Continental and Copa that have been
negotiated to implement the Services Agreement:
Agreement Dated
---------------------------------------------------------- ------------------
COPA's Use of Continental's Manuals Agreement August 13, 1998
Agreement (with respect to CO Sales Support in Miami) October 31, 1998
Frequent Flyer Program Participation Agreement January 27, 1999
Trademark License Agreement May 24, 1999
Agreement (with respect to CO's P-Club in Panama) July 13, 1999
Equipment Sales Agreement December 1, 1999
Information Technology Services Agreement September 27, 2000
Parts Pool Agreement October 12, 2000
Agreement (with respect to CO SalesInsight software) November 11, 2000
COPA Corporate Program Inclusion Agreement November 16, 2000
Agreement (with respect to distribution services) November 28, 2000
737-700Maintenance Management, Material Management and
Maintenance Services Agreement May 3, 2001
Agreement (with respect to CO Sales Support in Los Angeles) June 2, 2001
Agreement (with respect to CO's CTO in Cuenca, Ecuador) December 14, 2001
General Passenger Sales Agency Agreement (Chile) January 1, 2002
Airline Forecasting Services Agreement January 14, 2002
City Ticket Office Representation Agreement February 11, 2002
Agreement (with respect to CO General US Sales Support) May 30, 2002
General Passenger Sales Agency Agreement (Argentina) November 29, 2002
In-Flight Entertainment Agreement February 19, 2004
Agreement (with respect to CO's RewardOne system) March 15, 2004
Agreement (with respect to CO Sales Support in New York) June 1, 2004
Standard Ground Handling Agreement (LAX) June 1, 2004
MarketingInsight for Copa Airlines Agreement October 7, 2004
