AMENDMENT TO THE
EXHIBIT
10.4(d)
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Certain
portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934. The omitted materials have been filed separately with the
Securities and Exchange Commission.
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CONFIDENTIAL
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AMENDMENT
TO THE
AMENDED
AND RESTATED AIR SERVICES AGREEMENT
This
Amendment to the Amended and Restated Air Services Agreement (“Amendment”), is
entered into effective as of October 23, 2008 between AMR Corporation, a
Delaware corporation (“AMR”) and Chautauqua
Airlines, Inc., a New York corporation (the “Contractor”).
Recitals
AMR and Contractor entered into an Air
Services Agreement dated June 11, 2001 (“Original
Agreement”) for Contractor
to operate Feeder Air Service utilizing regional jets. The Original
Agreement was superseded by the Amended and Restated Air Services
Agreement dated as of June 12, 2002 (as amended from time to time, “Agreement”). The
Agreement was amended by a Side Letter agreement dated March 26, 2003 and by an
Amendment to Amended and Restated Air Services Agreement dated October 28,
2003.
The
Agreement provides that Contractor will operate Feeder Air Service utilizing 00
Xxxxxxx XXX 000 aircraft and AMR now wants Contractor to reduce the number to 00
Xxxxxxx XXX 000 aircraft.
The
parties hereby amend the Agreement as described below:
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1.
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Removed
Aircraft
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Notwithstanding
anything to the contrary in the Agreement (including without limitation Section
1.02), Contractor shall on and after June 1, 2009 provide Feeder Air Service
under a monthly schedule based on utilizing 13 Approved Aircraft and all amounts
(other than Rental Fees described below) that are payable by AA to Contractor
under the Agreement shall be calculated based on Contractor utilizing 13
Approved Aircraft. Contractor hereby grants to AA rights, exercisable
on [*] written notice to
Contractor, to cause Contractor to again provide Feeder Air Service under a
monthly schedule utilizing 14 or 15 Approved Aircraft so long as Contractor has
not executed a binding agreement for a Disposition (defined below) of a Removed
Aircraft (defined below) before receiving AA’s notice and so long as all amounts
that are payable by AA to Contractor under the Agreement are calculated based on
Contractor utilizing the additional Approved Aircraft. In the event
AA provides such notice to Contractor, AA agrees to utilize such Removed
Aircraft as an Approved Aircraft [*].
Notwithstanding
that the Contractor may be providing Feeder Air Service under a monthly schedule
based on utilizing fewer than all of the Approved Aircraft: (i) Contractor shall
continue to keep all of the Approved Aircraft in airworthy condition and may
utilize any Approved Aircraft to provide Feeder Air Service Flights; and (ii) AA
shall pay to Contractor as Pass Through Costs the monthly rental fees owed by
Contractor for each Approved Aircraft as shown in Annex A to this Amendment
(“Rental
Fees”). Contractor shall use, and AA’s obligation to pay the
Rental Fees is conditioned upon Contractor using, its commercially reasonable
efforts to sell, sublease or otherwise transfer ("Disposition") up to
two of the Approved Aircraft that are not required under a monthly schedule
based on utilizing less than 15 Approved Aircraft ("Removed
Aircraft"). Any Disposition shall be on terms that eliminate
any remaining Rental Fees owed to third parties for the Removed Aircraft and
that are otherwise reasonably acceptable to Contractor and AA. AA
shall have no obligation to pay Rental Fees to Contractor with respect to a
Removed Aircraft after the earlier of (a) a Disposition of that Removed Aircraft
and (b) the expiration or termination of the Agreement. After each
Disposition, AA nevertheless will pay to Contractor each month, until the
termination or expiration of the Agreement, an amount equal to [*] (“Incentive
Payments”). The Rental Fees and Incentive Payments shall be
pro rated daily for any partial periods.
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2.
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Termination Without
Cause
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Section
7.02(k) is hereby amended by deleting clauses (1) and (2) of the proviso and
inserting the following new clauses (1) and (2):
(1) such
notice may not be given prior to September 30, 2011, (2) AA will pay to
Contractor the amount of [*] upon the termination of
the Agreement pursuant to this Section 7.02(k),
*Confidential
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3.
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Exhibits and
Schedules
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(A)
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Section
1.B. (Passenger Stipend) of Exhibit E (Charges Payable) shall be
deleted in its entirety.
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(B)
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Effective
April 1, 2009, Schedule X-0x (XXX-000 Xxxxx Hour Payment Rate
and Passenger
Stipend Rate) to the Agreement shall be deleted in its entirety and
replaced with Annex B to this Amendment (such replacement to occur
immediately prior to any escalation of such amounts pursuant to Schedule
E-4, it being acknowledged that such escalation of such replacement
amounts shall occur on such date).
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(C)
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Section
1.A. of Schedule E-3 (Pass Through Costs) to the Agreement is hereby
deleted in its entirety and replaced with the
following:
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A.
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Fuel
(into-plane) – The Block Hour charge includes cost reimbursement to
Contractor for Jet A fuel at an average gross (into-plane, including
taxes and servicing) cost of [*] per gallon (“Base Fuel
Cost”).
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If
Contractor’s actual average gross cost per gallon of Jet A fuel purchased
for Feeder Air Service during any calendar month (“Actual Fuel Cost”) exceeds the
Base Fuel Cost, then AA shall pay to Contractor with respect to the next
succeeding calendar month, in the manner provided in Section 3.B of
Exhibit F, an advance payment of the estimated excess fuel cost for that
month (“Fuel
Advance”). The Fuel Advance shall be determined by [*].
If
Contractor’s actual cost for fuel purchased for Feeder Service Flights during a
calendar month (“Monthly Fuel
Cost”) exceeds the sum of (a) the Fuel Advance for that month, and (b)
the Base Fuel Cost multiplied by the Block Hours for that month, then [*].
[*]
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(D)
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Section 3.B
of Exhibit F (Accounting Procedures) to the Agreement is hereby
deleted in its entirety and replaced by the
following:
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B.
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AA
shall pay Contractor
for Feeder Air Services, via wire transfer, according to the
provisions set forth below:
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(1) AA
shall estimate the monthly Block Hour charges based upon the published flight
schedule for that month and shall pay Contractor [*] of the
estimated Block Hour charges in the following installments:
(2) On
the 5th day of the month, or the next business day, AA shall pay Contractor
[*]of
the sum of the estimated Block Hour charge and the Fuel Advance for the current
month.
(3) On
the 10th day of the month, or the next business day, AA shall pay Contractor
[*] of
the sum of the estimated Block Hour charge and the Fuel Advance for the current
month.
(4) On
the 25th day of the month, or the next business day, AA shall pay Contractor:
(i) [*]
of the sum of the estimated Block Hour charge and the Fuel Advance for the
current month, plus (ii) any amounts due Contractor for Freight and Small
Package shipments under Section 6 of Exhibit F below, plus (iii) the
reconciliation of the prior month’s Block Hours charges, except that AA may
offset against those prior month’s reconciliation items any amounts due to AA by
Contractor.
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(E)
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Because
there remain no unamortized training costs, Exhibit M (Training Costs
Table) to the Agreement is hereby deleted in its
entirety.
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4.
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Miscellaneous.
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All
capitalized terms not defined in this Amendment have the meanings ascribed to
them in the Agreement.
*Confidential
The
Agreement, as amended by this Amendment, constitutes the entire understanding of
the parties with respect to its subject matter and supersedes any other prior or
contemporaneous agreements, whether written or oral, with respect to its subject
matter.
This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute one and
the same instrument.
All terms
of the Agreement remain in full force and effect except as amended by this
Amendment.
The
parties signed this Amendment to the Amended and Restated Air Services Agreement
on the dates written below.
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Chautauqua
Airlines, Inc.
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AMR
Corporation
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/s/
Xxxxx Xxxxxxx
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/s/
Xxxx X. Xxxx
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Name:
Xxxxx
Xxxxxxx
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Name:
Xxxx
X. Xxxx
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Title:
President & CEO
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Title:
VP Planning & Marketing
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| Dated: October 23, 2008 | Dated: October 23, 2008 |
ANNEX
A
Pass-Through
Costs for ERJ140 Aircraft Rental
Rental
Fees
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Tail
#
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Monthly
Rent
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N295SK
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[*]
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N297SK
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[*]
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N299SK
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[*]
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N371SK
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[*]
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N372SK
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[*]
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N373SK
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[*]
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N374SK
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[*]
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N375SK
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[*]
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N376SK
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[*]
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N377SK
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[*]
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N378SK
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[*]
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N379SK
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[*]
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N380SK
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[*]
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N381SK
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[*]
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N382SK
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[*]
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*Confidential
Annex A – Page 1
ANNEX
B
Schedule E-1b – ERJ-140 Block Hour
Payment Rate
Effective
April 1, 2009
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Scheduled
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New
Block
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Utilization
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Hour
Rate
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Minimum
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[*]
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[*]
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Maximum
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[*]
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[*]
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*Confidential
Annex B – Schedule E-1b – Page
