Exhibit 10.2
FOURTH AMENDMENT TO CODE SHARE AND REVENUE
SHARING AGREEMENT AND RELEASE
THIS FOURTH AMENDMENT TO CODE SHARE AND REVENUE SHARING AGREEMENT AND
RELEASE (this "Fourth Amendment") is made and entered as of September 5, 2003
(the "Effective Date"), between AMERICA WEST AIRLINES, INC., a Delaware
corporation ("AWA"), MESA AIRLINES, INC., a Nevada corporation ("Mesa"), AIR
MIDWEST, INC., a Kansas corporation ("AM"), and FREEDOM AIRLINES, INC., a Nevada
corporation ("Freedom").
RECITALS:
A. AWA, Mesa, AM and Freedom are parties to that certain Code Share and
Revenue Sharing Agreement, dated to be effective February 1, 2001, as amended by
that certain First Amendment to Code Share and Revenue Sharing Agreement, dated
to be effective April 27, 2001, that certain Second Amendment to Code Share and
Revenue Sharing Agreement, dated to be effective October 24, 2003, and that
certain Third Amendment to Code Share and Revenue Sharing Agreement, dated to be
effective January 29, 2003 (the "Code Share Agreement"). All capitalized terms
used herein, but not otherwise defined herein, shall have the meaning given to
such terms in the Code Share Agreement.
B. The Code Share Agreement requires Mesa to provide certain Flight
Services and Other Services for AWA, pursuant to the terms and conditions of the
Code Share Agreement.
C. AWA and Mesa desire to amend the Code Share Agreement pursuant to the
terms and conditions of this Fourth Amendment.
D. AWA and Mesa, subject to certain exceptions, desire to release the
other from certain amounts owed under the Code Share and Revenue Sharing
Agreement dated July 15, 1998, as amended ("Original Agreement") and the Code
Share Agreement.
E. In connection with the execution of this Amendment, AWA intends to
compensate Mesa in an amount equal to $[. . . *** . . .] ("Payment Amount"),
which amount shall be offset and paid pursuant to the terms of this Fourth
Amendment.
NOW, THEREFORE, in consideration of the promises, covenants,
representations and warranties hereinafter set forth, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, AWA
and Mesa, and Freedom and AM as Affiliated Service Providers under and pursuant
to the Code Share Agreement, agree as set forth below.
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
AMENDMENTS:
1. The Parties agree that the first paragraph of Section 2.1 of the
Code Share Agreement is amended in its entirety as follows:
Flight Service. During the term of this Agreement, Mesa (and its
Affiliated Service Providers) shall operate America West Express air
transportation services (the "Flight Services"), using the Fleet of
Aircraft established pursuant to Section 2.2, to and from the cities
and based upon the schedule established from time to time by AWA
(the "Schedule") in written notice to Mesa (a "Schedule Notice").
For purposes of this Agreement, "Flights" means flights operated
pursuant to the Schedule. AWA may change the Schedule by issuance of
a Schedule Notice at any time. When creating a Schedule, AWA shall:
(i) take into account Mesa's (or its Affiliated Service Providers')
aircraft maintenance requirements; (ii) create a Schedule which will
permit Mesa (or its Affiliated Service Providers)to schedule flight
crews in a manner consistent with industry operational practices;
(iii) schedule block times based on AWA's internal block time
policy; (iv) provide for the following turn times: (a) in a hub
location: 20 minutes for Dash 8s and 25 minutes for any Aircraft in
the CRJ Subfleet; and (b) in other stations: 15 minutes for Dash 8s
and 20 minutes for any Aircraft in the CRJ Subfleet; (v) take into
account airport facilities available for Aircraft handling; (vi)
provide for maintenance as required by Section 2.6.3 and scheduled
heavy maintenance on Aircraft as required from time to time; and
(vii) provide for at least 45 days prior notice of any holiday
cancellations. Mesa (and its Affiliated Service Providers) shall
implement all changes in the Schedule contained in a Schedule Notice
in accordance with AWA's scheduling requirements within 60 days
after Mesa's receipt of a Schedule Notice. Mesa or any of its
affiliates shall not provide any flight service for any other
airline for flights that originate in or end in Phoenix, Arizona,
other than flights approved in advance by AWA, in writing, that are
scheduled or operated for maintenance requirements only; provided,
however, that Mesa, until 11:59 p.m. Phoenix time on March 1, 2004,
may operate [. . . *** . . .] as United Express into Phoenix,
Arizona [. . . *** . . .].
2. The Parties agree that the introductory paragraph of Section 2.2.2
and Section 2.2.2(a) of the Code Share Agreement are amended in
their entirety as follows:
CRJ Fleet Expansion. Pursuant to the Aircraft Contract, Mesa (or its
Affiliated Service Providers) has the right to acquire additional
CRJ Model 900 Aircraft, by virtue of firm orders (the "Firm
Aircraft"), and additional CRJ Models 700 and 900 Aircraft, by
virtue of options (the "Option Aircraft"), in the number and in the
months set forth on Exhibit A, attached hereto. The Firm Aircraft
consist of CRJ Model 900 Aircraft and the Option Aircraft consist of
CRJ Models 700 and 900
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Aircraft as set forth in Exhibit A. For purposes of this Agreement,
the CRJ Model 200s shall be a "CRJ Subfleet" and the CRJ Model 700s
and 900s shall be a "CRJ Subfleet". The term "CRJ" is intended to
refer to CRJ Models 200s, 700s or 900s, as applicable.
(a) Each of the Firm Aircraft shall be placed into Flight Services
by Mesa (or its Affiliated Service Providers) in the calendar
months set forth on Exhibit A (the "Delivery Schedule"). Mesa
shall provide AWA with at least 90 days' prior written notice
of the week each of the Firm Aircraft will be placed into
Flight Service under this Agreement and at least 60 days'
prior written notice of the date on which each of the Firm
Aircraft will be placed into Flight Service under this
Agreement (each, a "Scheduled Delivery Date").
3. The Parties agree that Section 2.2.2(c) of the Code Share Agreement
is amended by: (A) adding the phrase: (i) "or in the calendar month
in which the Firm Aircraft is to be delivered pursuant to the
Delivery Schedule, as applicable" after "Scheduled Delivery Date" in
the first sentence of Section 2.2.2(c); and (ii) "or the calendar
month in which the Firm Aircraft is to be delivered pursuant to the
Delivery Schedule, as applicable" after the term "Scheduled Delivery
Date" is used in the second and third sentences of Section 2.2.2(c);
and (B) adding the parenthetical "(as initially established by the
Delivery Notice, as defined in Section 2.2.2(e))" after the term
"Scheduled Delivery Date" in the Section.
4. The Parties agree that the Code Share Agreement is amended by adding
the following as Section 2.2.2(d):
Notwithstanding anything contained in Sections 2.2.2(a) and (c) to
the contrary, Mesa, by providing AWA with written notice (a "Delay
Notice") at least [. . . *** . . .] prior to the first day of the
calendar month in which a Firm Aircraft is to be delivered pursuant
to the Delivery Schedule (the "Scheduled Delivery Month"), may, at
its sole option and without penalty of any kind, delay the Scheduled
Delivery Month for a Firm Aircraft by up to [. . . *** . . .] if
either: (i) Bombardier notifies Mesa, in writing, that Bombardier
will be unable to deliver the applicable Firm Aircraft on time; or
(ii) if Mesa, despite using commercially reasonable efforts, is
unable to obtain financing for the applicable Firm Aircraft, timely
to deliver the Firm Aircraft in the Scheduled Delivery Month. The
Delay Notice shall: (i) be accompanied with the Bombardier notice or
a reasonable description of the efforts made by Mesa to obtain the
financing and the reason for not obtaining the financing, as
applicable; and (ii) establish the new Scheduled Delivery Month in
which the Firm Aircraft being delayed is to be delivered.
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Mesa shall only be entitled to extend the Scheduled Delivery Month
for a Firm Aircraft one time pursuant to this Section 2.2.2(d).
5. The Parties agree that the Code Share Agreement is amended by adding
the following as Section 2.2.2(e):
Bombardier Delivery Date. Pursuant to Mesa's agreement with
Bombardier, Bombardier is required to provide Mesa with 90 days'
written notice of the scheduled delivery week of each Firm Aircraft
(the "B-90 Notice"). Based on the B-90 Notice, Mesa, at least 60
days prior to the Scheduled Delivery Date, provides AWA with written
notice of the Scheduled Delivery Date pursuant to the last sentence
of Section 2.2.2(a) (the "Delivery Notice") for each Firm Aircraft.
For purposes of this Section 2.2.2(e), Mesa, based upon a change in
delivery dates received by Mesa from Bombardier, shall have the
right to extend the Scheduled Delivery Date to a new date certain
once for each Firm Aircraft by providing AWA with written notice at
least 45 days prior to the Scheduled Delivery Date established by
the applicable Delivery Notice (the "Extension Notice"). If a Firm
Aircraft is delivered by Mesa to AWA and is ready to be placed into
Flight Services prior to the Scheduled Delivery Date established by
the Delivery Notice (as may be extended by an Extension Notice),
then AWA shall not be obligated to make any payment under this
Agreement for such Firm Aircraft until the Scheduled Delivery Date
established by Mesa pursuant to the Delivery Notice (as may be
extended by an Extension Notice). If a Firm Aircraft is delivered by
Mesa to AWA and is ready to be placed into Flight Services after the
Scheduled Delivery Date established by the Delivery Notice (as may
be extended as a result of an Excusable Delay or an Extension
Notice), then, notwithstanding anything in Section 2.2.2(c) to the
contrary, Mesa, within 30 days after receipt of written demand from
AWA, shall pay to AWA an amount equal to $[. . . *** . . .] for each
day following the fifth day after the Scheduled Delivery Date that
the Firm Aircraft is not delivered until the date that the Firm
Aircraft is available to AWA to be placed into Flight Services under
this Agreement ("Delay Amount"), not to exceed for any Firm Aircraft
the greater of (i) $[. . . *** . . .] or (ii) the amount paid by
Bombardier to Mesa as damages for the late delivery of such Firm
Aircraft. An "Excusable Delay" shall be defined to include delays
commencing after the date of the Delivery Notice and before the
Scheduled Delivery Date (as may be extended by an Extension Notice)
and occasioned by the following causes:
i. acts of God;
ii. war, warlike operations, act of the enemy, armed
aggression, civil commotion, insurrection, riot or
embargo;
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
iii. fire, explosion, earthquake, lightning, flood, drought,
windstorm or other action of the elements or other
catastrophic or serious accidents;
iv. epidemic or quarantine restrictions;
v. any change in legislation, acts, orders, directives or
regulations of any governmental or other duly
constituted authority (other than CRJ Regulatory Changes
and CRJ Airworthiness Directives) once the applicable
Aircraft type has been certified by the FAA; or
vi. strikes, lock-out, walk-out, and/or other labor
troubles, in each case, with respect to employees of
Bombardier causing cessation of work;.
If an Excusable Delay occurs, then the Scheduled Delivery Date for
purposes of this Section 2.2.2(e) shall be extended for the number
of days of Excusable Delay ("Excusable Delay Period"), and the Delay
Amount shall not begin to accrue until the fifth day after the
Scheduled Delivery Date, as extended by the Excusable Delay Period.
The terms of this Section 2.2.2(e) are in addition to, and not in
lieu of, the terms of Sections 2.2.2(c) and 2.2.2(d).
6. The Parties agree that the Code Share Agreement is amended by adding
the following as Section 2.2.2(f):
[. . . *** . . .]
7. The Parties agree that the Code Share Agreement is amended by adding
the following as Section 2.2.2(g):
[. . . *** . . .]
8. The Parties agree that Section 2.2.3 of the Code Share Agreement is
amended by adding the following:
Elimination of CRJ Model 700s. In addition to the terms of Sections
2.2.4 and 2.2.5(d), (i) in recognition of the total of four (4) CRJ
Model 900s to be delivered pursuant to the Delivery Schedule in
October 2003, November 2003 and December 2003, Mesa shall remove, or
cause Freedom to remove, from the CRJ Subfleet one (1) CRJ Model 700
at 11:59 p.m. Phoenix time on each of the following dates: November
24, 2003; December 1, 2003; December 2, 2003; and December 24, 2003;
and (ii) on each date that a CRJ Model 900 is placed into Flight
Services pursuant to the terms of this Agreement, commencing with
the CRJ Model 900 to be delivered in January 2004, Mesa shall
remove, or shall cause Freedom to remove, from the CRJ Subfleet a
CRJ Model 700 for each CRJ Model 900 placed into Flight Services,
until the number of CRJ Model 700s in the CRJ Subfleet is reduced to
zero, which, pursuant to the Delivery Schedule, is
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
scheduled to occur upon the delivery of the March 2004 CRJ Model
900. AWA shall reimburse Mesa for the actual, out-of-pocket costs or
expenses incurred by Mesa (or Freedom as applicable) as a direct
result of the painting (including the days out of service for
painting) of each CRJ Model 700 removed pursuant to this Section
2.2.3 within thirty (30) days after receipt of an invoice from Mesa
together with commercially reasonable evidence of such costs or
expenses.
9. The Parties agree that Section 2.2.4 of the Code Share Agreement is
amended in its entirety as follows:
Additional CRJ Fleet Reduction. In addition to the terms of Sections
2.2.3 and 2.2.5, upon 180 days' prior written notice from AWA to
Mesa given from time to time during the Term, AWA, subject to
limitations set forth in the next sentence, may require Mesa to
reduce, or require Mesa to cause Freedom to reduce, the number of
Aircraft in the combined CRJ Subfleets. AWA shall not require Mesa
to reduce, or require Mesa to cause Freedom to reduce, the number of
Aircraft: (i) in the CRJ Model 200 CRJ Subfleet prior to January 1,
2007; (ii) in the CRJ Model 900s (and CRJ Model 700s if any CRJ
Model 900s are replaced pursuant to Section 2.2.2(g)) CRJ Subfleet
prior to: (1) January 1, 2007, if Mesa does not induct any of the
Put CRJ 900s pursuant to Section 2.2.2(f) (as may be replaced
pursuant to Section 2.2.2(g) with CRJ Model 700s), or (2) July 1,
2006, if Mesa inducts one or more of the Put CRJ 900s pursuant to
Section 2.2.2(f) (as may be replaced pursuant to Section 2.2.2(g)
with CRJ Model 700s); and (iii) in the combined CRJ Subfleets by
more than one Aircraft in any Six Calendar Month Period;
notwithstanding such limitation, during the two (2) Six Calendar
Month Periods commencing January 1, 2007 and July 1, 2007, AWA may
reduce the combined CRJ Subfleets by either: (i) up to two (2) CRJ
Model 200 Aircraft; or (ii) one (1) CRJ Model 900 or CRJ Model 700
Aircraft and one (1) CRJ Model 200 Aircraft, in each such Six
Calendar Month Periods. For purposes of this Agreement, "Six
Calendar Month Period" means each period during the Term (as defined
below) commencing on January 1 and ending on June 30 and commencing
on July 1 and ending on December 31.
10. The Parties agree that Section 2.2.5 of the Code Share Agreement is
amended in its entirety as follows:
Additional Aircraft Reduction.
(a) Effective July 1, 2003, the Subfleet of Beech 1900s was
reduced to zero. From and after July 1, 2003, Mesa shall no
longer provide any Flight Services using Beech 1900s and AWA
shall have no payment or other obligations under this
Agreement accruing or arising after July 1, 2003 in regards to
any
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Beech 1900s. All references to the Beech 1900s and the
subcontracting of services relating to the Beech 1900s shall
be eliminated from the Agreement effective as of July 1, 2003.
(b) Mesa, on July 1, 2003, removed one (1) Dash 8 Aircraft from
the Dash 8 Subfleet and on September 3, 2003, will remove two
(2) Dash 8 Aircraft from the Dash 8 Subfleet. At any time
during the Term after August 25, 2007, AWA may require Mesa to
reduce the Subfleet of Dash 8s to zero by providing Mesa with
at least 180 days' prior written notice of AWA's election to
eliminate the Dash 8s on or after such date (the "Dash 8
Elimination Notice"). The Dash 8 Elimination Notice may be
given at any time during the Term on or after February 27,
2007.
(c) Mesa removed one (1) CRJ Model 200 from the CRJ Subfleet (for
a total of five (5) CRJ Model 200s) on each of the following
dates:
April 27, 2003
June 4, 2003
June 22, 2003
June 27, 2003
July 2, 2003
reducing the CRJ Model 200 CRJ Subfleet to 18 Aircraft.
(d) Mesa removed two (2) CRJ Model 700s from the CRJ Subfleet at
11:59 p.m. Phoenix time on September 2, 2003. Mesa shall
remove, or cause Freedom to remove, (or not place into Flight
Services, as applicable) one (1) CRJ Model 700 at 11:59 p.m.
Phoenix time on September 14, 2003, and two (2) CRJ Model 700s
at 11:59 p.m. Phoenix time on September 21, 2003 from the CRJ
Subfleet, reducing the CRJ Model 700s in the applicable CRJ
Subfleet to 10.
(e) On or before October 31, 2003, AWA, by written notice to Mesa,
shall have the right to cause the 12 CRJ Model 900s scheduled
to be delivered into Flight Services from April, 2005 to
November, 2005 (the "Rejectable CRJs"), pursuant to the
Delivery Schedule, not to be added to the CRJ Subfleet and not
to be placed into Flight Services (the "900 Election Notice").
If AWA does not issue the 900 Election Notice, timely, and
such failure to issue the 900 Election Notice, timely,
continues for 15 days after AWA's receipt of written notice
from Mesa stating that AWA failed to issue the 900 Election
Notice, then AWA shall have no further right to issue a 900
Election Notice and reject the Rejectable CRJs. If AWA issues
the Election Notice as provided by this Section 2.2.5(e), then
none of the Rejectable CRJs shall be
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
added to the CRJ Subfleet or placed into Flight Services under
this Agreement.
(f) Neither Mesa, AM nor Freedom shall operate any Aircraft
removed from Flight Services for itself or any other airline
while the Aircraft are marked with AWA's livery
(g) From and after the date each Aircraft was or is removed from
Flight Services pursuant to any section of this Agreement, AWA
had and shall have no further payment or other obligation
under this Agreement for such Aircraft.
11. The Parties agree that Section 2.2.6 is amended in its entirety as
follows:
Spares. Mesa shall have available 1 spare CRJ Model 200, 700 or 900
Aircraft for Flight Services under this Agreement at any time there
are 25 or more Aircraft in the combined CRJ Subfleets in Flight
Services under this Agreement and 2 spare CRJ Model 200, 700 or 900
Aircraft available for Flight Services under this Agreement at any
time there are 65 or more Aircraft in the combined CRJ Subfleets in
Flight Services under this Agreement. AWA shall pay the Actual
Costs, Guaranteed Non-Maintenance Costs (other than overhead) and
Guaranteed Maintenance Costs actually incurred by or payable to Mesa
for each spare Aircraft as provided in Section 7.
12. The Parties agree that the Code Share Agreement is amended by adding
the following as Section 2.2.8:
Affiliated Service Provider Aircraft. Mesa, with at least 30 days'
prior written notice to AWA, may substitute any Aircraft operated by
Mesa or Freedom under or pursuant to this Agreement with an aircraft
of the same model, capacity, configuration and meeting the other
requirements of this Agreement, operated by an Affiliated Service
Provider (each, a "Substituted Aircraft"); provided that Mesa and
such Affiliated Service Provider have complied with the provisions
of Section 2.1 and all other provisions relating to Affiliated
Service Providers. Upon each substitution, each Substituted Aircraft
shall become an Aircraft for all purposes of this Agreement. Mesa
shall reimburse AWA for any out-of-pocket costs or expenses incurred
by AWA as a result of the substitution of Aircraft under this
Section 2.2.8 within thirty (30) days after receipt of an invoice
from AWA together with commercially reasonable evidence of the
out-of-pocket costs or expenses actually incurred by AWA.
13. The Parties agree that the Code Share Agreement is amended by
deleting Section 7.1.8.
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
14. The parties agree that the Code Share Agreement is amended by adding
the following as a new Section 7.10:
Station Costs. AWA shall reimburse to Mesa the costs and expenses
incurred by Mesa at stations maintained by Mesa in the amounts and
at the rates set forth in Exhibit B, attached hereto (the "Station
Costs"). Mesa shall invoice, as part of the "Estimated Costs", and
AWA shall pay the Station Costs on a monthly basis in accordance
with Section 7.5.1 of this Agreement. Pursuant to Section 7.5.2 of
this Agreement, Mesa shall include in each Incurred Costs Statement
the final amount of the Station Costs payable by AWA to Mesa for
each applicable calendar month, all as calculated in accordance with
Exhibit B, attached hereto. Underpayments and overpayments of
Station Costs shall be reconciled in the manner set forth in Section
7.5.2 for "Incurred Costs". The terms of Section 7.5.4 shall be
applicable to the Station Costs included or not included in each
applicable Incurred Costs Statement; provided, however, that if any
landlord or operator of any station is entitled to retroactively
adjust station rents, then the applicable station rent shall be
adjusted by Mesa as soon as reasonably practicable after such
adjustment and shall be paid by or reimbursed to AWA within 30 days
after Mesa provides AWA with notice of such adjustment and
recalculation. All of the terms contained in Sections 7.8 and 7.9
shall apply to the invoicing, paying, collecting and auditing of
Station Costs.
AWA and Mesa intend for the Station Costs to be effective
retroactive to January 1, 2003. As soon as practicable and in no
event later than 90 days after the Effective Date of the Fourth
Amendment, Mesa shall submit to AWA a reconciliation of the Station
Costs (the "Reconciliation") since January 1, 2003 calculated in
accordance with Exhibit F. To the extent the Reconciliation
discloses that sums are due from AWA to Mesa, AWA shall pay such
sums to Mesa.
15. The Parties agree that Section 8.1 of the Code Share Agreement is
amended as follows:
Term. The term of this Agreement (the "Term") commences on the
Effective Date retroactive to the Contract Date (the "Commencement
Date") and shall expire at 11:59 p.m., Phoenix time, on June 30,
2012 ("Expiration Date"), unless earlier terminated as provided in
this Agreement. Notwithstanding the foregoing to the contrary, if
the 900 Election Notice is not issued by AWA to Mesa as required by
Section 2.2.5(e) and the Rejectable CRJs are added to the CRJ
Subfleet, then the Expiration Date shall be extended to 11:59 p.m.,
Phoenix time, on November 30, 2013. AWA, by written notice to Mesa
at
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
least 180 days prior to the Expiration Date, may extend the
Expiration Date for two years, expiring at 11:59 p.m., Phoenix time,
on June 30, 2014 or November 30, 2015, as applicable.
16. The Parties agree that Exhibit A to the Code Share Agreement is
amended in its entirety as set forth in Attachment 1 to this Fourth
Amendment, and Exhibit B to the Code Share Agreement is amended in
its entirety as set forth in Attachment 2 to this Fourth Amendment.
17. Reserved.
AGREEMENTS:
18. Release.
(a) Except as provided in Section 17(c), below, AWA fully and
finally releases, acquits and forever discharges Mesa and its
parent companies and subsidiaries from any and all claims or
demands for any amounts owed, accrued, payable, incurred,
billed or invoiced pursuant to the Code Share Agreement or the
Original Agreement for matters, services, actions, events,
activities or other items provided or occurring on or before,
or related to the period expiring on, December 31, 2002.
(b) Except as provided in Section 17(c), below, Mesa, AM and
Freedom fully and finally release, acquit and forever
discharge AWA and its parent companies and subsidiaries from
any and all claims or demands for any amounts owed, accrued,
payable, incurred, billed or invoiced pursuant to the Code
Share Agreement or the Original Agreement for matters,
services, actions, events, activities or other items provided
or occurring on or before, or related to the period expiring
on, December 31, 2002.
(c) Notwithstanding the foregoing, the parties agree that the
releases set forth in subsections (a) and (b) above shall not
apply to (i) any amounts accruing or payable under the Code
Share Agreement after December 31, 2002 for services, actions,
events, activities or other items occurring after December 31,
2002; (ii) any amounts owed by Mesa pursuant to Section 5 of
the Code Share Agreement (provided, however, that AWA shall
not use its right of offset for these amounts until payment by
AWA of any amounts owing pursuant to the Reconciliation,
unless Mesa has not provided AWA with the Reconciliation
pursuant to Section 7.10 within 90 days of the Effective Date
of this Fourth Amendment in which case AWA may exercise its
offset rights for these amounts at any time after the 90th day
after the Effective Date of this
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Fourth Amendment); (iii) any Transition Reimbursement owed by
AWA pursuant to Section 2.2.7 of the Code Share Agreement;
(iv) any amounts to be paid by AWA pursuant to paragraph 18
below; (v) any amount payable by AWA to Mesa for the closure
of the maintenance base in Columbus, Ohio pursuant to Section
2.6.3 of the Code Share Agreement; (vi) any amounts owed by
Mesa to AWA as reimbursement for overpayment of landing fees
by AWA to Mesa; or (vii) any amounts payable by Mesa to AWA as
reimbursement for Aviation Security Infrastructure Fees.
Payment Obligation. On the Effective Date, AWA shall be obligated to
pay to Mesa the Payment Amount, [. . . *** . . .]
19. Withdrawal of Notice. AWA withdraws all notices that it provided to
Mesa for the cancellation of three (3) CRJ Model 700s and agrees and
acknowledges that, as of the Effective Date of this Fourth
Amendment, the number of CRJ Model 700s in the CRJ Subfleet (and
committed to be added to the CRJ Subfleet) is, in the aggregate,
fifteen (15).
20. CRJ Model 200s. As of the Effective Date of this Fourth Amendment,
the number of CRJ Model 200s in the CRJ Subfleet is eighteen (18).
21. Effect. Except as set forth in this Fourth Amendment, all of the
terms and conditions of the Code Share Agreement remain in full
force and effect.
22. Counterparts. This Fourth Amendment may be executed in counterparts,
all of which when taken together shall be one and the same document.
23. Entire Agreement. This Fourth Amendment constitutes the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior understandings with respect thereto.
AMERICA WEST AIRLINES, INC.
By: /s/ J. Xxxxx Xxxxx
---------------------------------
Name: J. Xxxxx Xxxxx
---------------------------------
Title: EVP - Sales and Marketing
---------------------------------
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
MESA AIRLINES, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
---------------------------------
AIR MIDWEST, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------------
Title:
---------------------------------
FREEDOM AIRLINES, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
---------------------------------
Title:
---------------------------------
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
EXHIBIT A
CRJ-700/900
DELIVERY SCHEDULE
CURRENT NEW TOTAL
XXX-000 XXX-000 XXX-000 CRJ-7/900
DELIVERIES REDUCTIONS DELIVERIES XXX-000 XXX-000 FLEET
---------- ---------- ---------- ------- ------- -----
9/2/03 [. . . *** . . .] [. . . *** . . .] [. . . *** . . .] [. . . *** . . .] [. . . *** . . .] [. . . *** . . .]
Sep-03
Oct-03
Nov-03
Dec-03
Jan-04
Feb-04
Mar-04
Apr-04
May-04
Jun-04
Jul-04
Aug-04
Sep-04
Oct-04
Nov-04
Dec-04
Jan-05
Feb-05
Mar-05
Apr-05
May-05
Jun-05
Jul-05
Aug-05
Sep-05
Oct-05
Nov-05
Incremental Aircraft [. . . *** . . .] [. . . *** . . .]
Note:
[. . . *** . . .]
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
EXHIBIT A
OPTION CRJ-700/900
DELIVERY SCHEDULE
DELIVERY OPTION
MONTH CRJ-7/900
----- ---------
Jan-04 [. . . *** . . .]
Feb-04
Mar-04
Apr-04
May-04
Jun-04
Jul-04
Aug-04
Sep-04
Oct-04
Nov-04
Dec-04
Each calendar month
thereafter through Oct-07 [. . . *** . . .]
[. . . *** . . .]
Note:
[. . . *** . . .]
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
EXHIBIT B
Cost per
Departure >3 Xxxx/ X00, XX0 and CRJ 200
Monthly Cost Departures per Departure Markets Covered by Model (as of
Aircraft Type Per Station Day PHX Hub 12/31/02)
------------- ----------- --- ------- ---------
B19 [. . . *** . . .] [. . . *** . . .] [. . . *** . . .] [. . . *** . . .]
DH8
CRJ 200
CRJ 700
CRJ 900
Mexico Stations
GDL (CRJ 200) [. . . *** . . .]
Each month, overall station cost reimbursement (exclusive of station rent) will
be determined by the sume of:
[. . . *** . . .]
Notes
[ . . . *** . . .]
[. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
