FORM OF AMENDED AND RESTATED SERVICES AGREEMENT
Exhibit 4.6
FORM OF AMENDED AND RESTATED
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”.
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.
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.
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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.
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 COPA, Continental agrees to offer such option aircraft for sale to COPA on commercially reasonable terms.
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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.
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(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.
(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.
(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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(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 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;
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(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.
(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.
“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.
(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.
10. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of New York.
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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.
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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.
CONTINENTAL AIRLINES, INC. |
By: |
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Name: |
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Title: |
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COMPANIA PANAMENA DE AVIACION, S.A.
By: |
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Name: |
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Title: |
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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 | |
737-700 Maintenance 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 | |
Marketing Insight for Copa Airlines Agreement |
October 7, 2004 |
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