AMENDMENT NUMBER TWO TO DELTA CONNECTION AGREEMENT
Exhibit
10.45(b)
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Execution
Version
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.
AMENDMENT
NUMBER TWO TO
This
Amendment Number Two (this “Second Amendment”), dated the 21st day of
August, 2007, to the Delta Connection Agreement dated and effective January
13,
2005 (as previously amended from time to time, the “Agreement”), is among
Delta Air Lines, Inc., 0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
(“Delta”), Shuttle America Corp. (as assignee of Republic Airline, Inc.)
(“Shuttle America” or “Operator”), 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 and Republic Airways Holdings, Inc. (“Republic”), 0000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
WHEREAS,
Delta, Shuttle America and Republic are parties to the Agreement;
WHEREAS,
the Agreement currently provides for the Operator to operate sixteen
(16) Embraer ERJ 170 aircraft (the “ERJ 170 Aircraft”) as a Delta
Connection Carrier; and
WHEREAS,
the parties desire to amend the Agreement to replace the ERJ 170 Aircraft with
sixteen (16) new XXX 000XX aircraft.
NOW,
THEREFORE, for and in consideration of the mutual undertakings set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Delta, Operator and Republic, intending to be legally
bound, hereby agree as follows:
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1.
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Defined
Terms. All capitalized terms used, but not
defined, herein shall have the meaning ascribed to such terms in
the
Agreement.
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2.
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Section
1(A) of the Agreement is hereby amended by deleting the first sentence
of
such section in its entirety and replacing it with the
following:
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Operator
hereby appoints Delta as its agent to publish all fares, schedules and related
information under Delta’s two letter flight designator code in city pairs
specified by Delta on the sixteen (16), including one (1) spare, Xxxxxxx XXX
000XX aircraft set forth on Exhibit A attached hereto (the “ERJ 175 Aircraft”)
and any other aircraft subsequently agreed by the parties to be operated by
Operator (together with the ERJ 175 Aircraft, collectively, the “Aircraft”), and
Delta hereby accepts such appointment.
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3.
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Exhibit
A to the Agreement is hereby deleted in its entirety and replaced
with the
Exhibit A attached to this Second
Amendment.
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4.
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A. Operator
expects that the ERJ 175 Aircraft shall be available to be placed
into
Delta Connection service no later than the dates set forth on Exhibit
A. Should Operator receive notification from the
manufacturer of the aircraft that aircraft deliveries are delayed,
Operator shall notify Delta of any such delay as soon as practicably
as
possible.
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B. Simultaneously
with the placement of each ERJ 175 Aircraft into service under the Agreement,
one (1) XXX 000 Xxxxxxxx xxxxx xx removed from Delta Connection service and
the
scope of the Agreement as of such date. In no event shall an ERJ 170
Aircraft be removed from Delta Connection service until such aircraft is fully
replaced by one of the ERJ 175 Aircraft.
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5.
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Section
3(A)(ii)(2) of the Agreement is hereby deleted in its entirety and
replaced with the following:
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(2)
Aircraft Lease Expense - Operator’s actual aircraft lease expenses for
each of the ERJ 175 Aircraft as determined in accordance with Exhibit B
(the “Aircraft Lease Expense”) attached hereto and incorporated herein (the
“Aircraft Lease Expense”); provided, however, (y) the average Aircraft Lease
Expense shall be capped at an amount equivalent to a monthly rate of [*] per
ERJ
175 Aircraft and (z) any Xxxx-UP of the Aircraft Lease Expense shall be capped
at an amount equivalent to a monthly rate of [*] for each ERJ 175
Aircraft.
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6.
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Section
3(G) of the Agreement is hereby amended by deleting “[*]” from the end of
the first sentence of such section and replacing it with
“[*]%”.
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7.
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Section
11(F) of the Agreement is hereby amended by deleting the word and
number
“seven (7)” from the first sentence of such section and replacing them
with “ten (10)”.
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8.
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Miscellaneous.
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A.
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This
Amendment constitutes the entire understanding of the parties with
respect
to the subject matter hereof, and any other prior or contemporaneous
agreements, whether written or oral, related thereto are expressly
superseded hereby.
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B.
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This
Second 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.
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C.
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Except
as specifically stated herein, all other terms and conditions of
the
Agreement shall remain in full force and
effect.
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[Remainder
of page intentionally left blank]
*
Confidential
IN
WITNESS WHEREOF, the parties have executed this Second Amendment by their
undersigned duly authorized representatives:
| Republic Airways Holdings, Inc. | Delta Air Lines, Inc. | |||
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/s/
Xxxxx
Xxxxxxx
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/s/
Xxxxx
Xxxxx
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|||
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Name:
Xxxxx
Xxxxxxx
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Name:
Xxxxx
Xxxxx
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|||
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Title:
Chairman and CEO
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Title:
Vice
President - Delta Connection
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| Shuttle America Corp. | ||||
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/s/
Xxxxx
Xxxxxxx
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|||
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Name:
Xxxxx
Xxxxxxx
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|||
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Title:
President
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EXHIBIT
A
Aircraft
In-Service Schedule
The
XXX
000XX Xxxxxxxx shall be placed into Delta Connection service in accordance
with
the following in-service schedule:
Date #
of Aircraft Placed into Service
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
Total 16
EXHIBIT
B
Aircraft
Lease Expense
| Assumptions: | |
| Spread | [*]% |
| 9 Year T-Xxxx Rate (a) | [*]% |
| Implied Rate | [*]% |
| Term Years | [*] |
| mortgage style - | |
| Amortization | level payment |
| Payment Schedule | In Advance |
| Leverage (b) | [*] |
| Aircraft Lease Rate | [*] |
| Notes: | |
|
a)
We will use the [*] rate on the date we close aircraft
financing. For example purposes only, the [*] rate on [*] was
[*]%
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| b) In January 2008 economics, subject to Embraer escalation adjustment, capped at [*]% annually | |
