First Amendment (this “First Amendment”) to the Capacity Purchase Agreement
EXHIBIT
10.55(a)
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.
January
8, 2007
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman
and CEO
Chautauqua
Airlines, Inc.
First
Amendment (this “First Amendment”) to the Capacity Purchase
Agreement
Gentlemen:
As
you
are aware, Chautauqua Airlines, Inc. (“Contractor”)
and
Republic Airways Holdings, Inc. (“Parent”)
and
Continental Airlines, Inc. (“Continental”),
are
each parties to an Capacity Purchase Agreement dated as of July 21, 2006
(the “CPA”).
Capitalized terms not defined herein shall be defined as provided in the
CPA.
Continental
and Contractor each desire to amend the CPA as follows, such amendments to
be
effective as of October 19, 2006:
| 1. |
The
Schedule
1
attached to this First Amendment shall replace in its entirety the
Schedule
1
attached to the CPA (such that all references to Schedule
1
in
the CPA, as amended hereby, shall be deemed to refer to the Schedule
1
attached to this First Amendment).
|
| 2. |
Section
10.11
of
the CPA shall be amended by deleting Subsection
10.11(b)
thereof, and thereafter amending Section
10.11(c)
thereof to be Section
10.11(b)
(and if there are any other references in the CPA to Section
10.11(c),
such references shall thereafter be deemed references to Section
10.11(b)).
|
| 3. |
Exhibit
A
attached to the CPA shall be amended by deleting the text of clause
(iv)
of the definition of “Cause” (and clauses (v) and (vi) thereof shall
continue to be referred to as clauses (v) and (vi)
thereof).
|
| 4. |
Sections
10.18
and 10.19
of
the CPA shall be amended in their entirety to read as
follows:
|
“Section
10.18 Extension
of Aircraft Term. At
any
time and from time to time, and at its sole option, Continental may extend
the
exit date for any Covered Aircraft (which shall extend the capacity purchase
provisions hereof with respect to such Covered Aircraft to such later exit
date)
by delivering to Contractor a revised Schedule
1
reflecting such later exit date; provided,
that
except as the parties may otherwise agree as reflected on a revised Schedule
1
signed
by Contractor and Continental:
(a)
no
extension of the exit date for a CRJ Aircraft shall be permitted by Continental
hereunder if (x) the resulting exit date would be subsequent to the date that
is
14 days prior to the end of the then-applicable lease term for such aircraft
and
(y) Contractor or Parent does not have the unilateral right to extend such
lease
term to a date coincident with or subsequent to the resulting exit date (it
being understood that Contractor shall be deemed to have the unilateral right
to
extend such lease term if Continental and Contractor’s or Parent’s lessor shall
have negotiated a lease extension to a date that is 14 days after the resulting
exit date at a lease cost not in excess of the rent per month for such aircraft
on Schedule
1
(or such
other amount as Continental shall agree to include in an amended Schedule
1),
which
lease extension shall otherwise be on the same terms and conditions as the
lease
being extended (and Contractor or Parent, as appropriate shall agree to
cooperate in all reasonable respects with Continental in such
regard));
(b)
any
extension for any aircraft shall be made only in increments of twelve months
(or
such lesser period as conforms to the termination date of the lease for such
aircraft and provides for the 14-day return period referenced in clause (a)
above);
(c)
the
exit date for any Covered Aircraft may be extended more than once;
(d)
the
exit date for any Covered Aircraft shall not be extended more than an aggregate
of five years; and
(e)
notice of any extension hereunder shall be in a writing and given at least
six
months in advance.
Upon
delivery to Contractor, such revised Schedule
1
shall be
incorporated into this Agreement without any further action by any party and
shall thereafter constitute the amended and restated Schedule
1
for all
purposes of this Agreement (unless such revised Schedule
1
requires
the signature of each party pursuant to the first proviso of this Section
10.18,
in
which case such revised Schedule
1
shall
only be incorporated into this Agreement and thereafter constitute the amended
and restated Schedule
1
for all
purposes of this Agreement upon the delivery of an executed Schedule
1
by each
of Contractor and Continental to the other). Upon any determination by
Contractor not to renew any lease for any Covered Aircraft, Contractor shall
promptly notify Continental (and if Continental has any further extension rights
hereunder with respect to such Covered Aircraft, then Contractor agrees to
provide a reminder notice to Continental at least 10 days prior to the date
by
which Contractor must notify the applicable lessor as to whether Contractor
intends to renew such lease). Further,
Contractor agrees not to amend any lease for any Covered Aircraft with the
purpose or effect of eliminating, reducing or otherwise impairing Continental’s
rights as set forth in this Agreement.
Section
10.19 Other
Adjustments to Schedule 1.
Continental and Contractor have agreed to the scheduled delivery dates,
scheduled exit dates and aircraft rent per month for the Covered Aircraft as
listed on Schedule
1.
If
Contractor enters into agreement (whenever entered into) that reduces any lease
costs for any such Covered Aircraft below the amount per month set forth on
Schedule
1,
Contractor agrees to adjust the “rent per month” for such Covered Aircraft set
forth on Schedule
1
to
reflect any difference between the lease costs and the amount shown as the
“rent
per month” on Schedule
1.
Not
later than January 31, 2007, Contractor will provide to Continental a schedule
of the lease expiration dates for all Covered Aircraft, and shall promptly
provide notice to Continental upon any subsequent change to any lease expiration
date for any Covered Aircraft.”
|
5.
|
It
is acknowledged that there are no aircraft scheduled to be Spare
Aircraft
hereunder prior to May 3, 2007. In order to provide increased operational
integrity from the first Scheduled Delivery Date hereunder and until
such
Spare Aircraft are designated, Contractor agrees to use commercially
reasonable efforts to make available for service for Continental
hereunder
any aircraft that is scheduled to become a Covered Aircraft hereunder
and
which is reasonably determined by Contractor to be available for
use
hereunder prior to the Scheduled Delivery Date (and will cause such
aircraft to be delivered to IAH or CLE as early as is reasonably
practicable in order to fulfill such purpose). If such an aircraft
is
utilized hereunder for such purpose, then such aircraft shall also
be
deemed to be a Covered Aircraft during the period of such use (and
Continental will pay Contractor the rates set forth on Appendix
1
to
Schedule
3
for any hours flown or departures by such aircraft, but Continental
shall
not be required to pay in respect of such aircraft the amount designated
on such Appendix as the amount payable “generally for each Covered
Aircraft for each day in the Term” and further that such early use shall
not cause the Scheduled Delivery Date or Scheduled Exit Date set
forth on
Schedule
1
for such aircraft to be changed).
|
|
6.
|
Appendix
1
to
Schedule
3
attached to this First Amendment shall replace in its entirety the
Appendix
1
to
Schedule
3
attached to the CPA (such that all references to Appendix
1
to
Schedule
3
in
the CPA, as amended hereby, shall be deemed to refer to the Appendix
1
to
Schedule
3
attached to this First Amendment).
|
|
7.
|
For
the avoidance of doubt, Contractor agrees that, in connection with
its
provision of Regional Airline Services to Continental under the CPA
and
the provision of other services contemplated to be performed by Contractor
under the Ancillary Agreements, it shall use commercially reasonable
efforts to minimize costs incurred by it if such costs would be
reimbursable by Continental to Contractor in accordance with the
CPA or
the applicable Ancillary Agreement. Further to the foregoing, if
Continental can provide or arrange to provide any service or item
for
which Continental is required to reimburse Contractor for its cost
of
providing at a lower cost than applicable to Contractor, then Contractor
shall allow Continental to provide or arrange to provide such service
or
item in order to permit Continental to lower its
costs.
|
|
7.
|
Contractor
agrees that the provisions of Section 10.07 of the CPA shall be deemed
to
permit Continental to disclose any financial information set forth
in any
exhibit, schedule or appendix of the CPA in connection with any
confidential arbitration proceeding involving ExpressJet Airlines,
Inc.
|
|
8.
|
Contractor
and Continental agree that Section 7.3 of the Continental Ground
Handling
Agreement and Section 7.5 of the Contractor Ground Handling Agreement
(each of which provides that “Carrier
specifically acknowledges that Article 8 of the Main Agreement
provides that Handling Company is not to be responsible for, and
that
Carrier is to indemnify Handling Company in respect of, legal liability
for certain claims arising out of the provision of ground handling
services even in circumstances where Handling Company is negligent,
and
Carrier agrees not to contend otherwise”) are
hereby amended to bold and underline such provisions to make them
conspicuous.
|
Except
as
specifically amended or modified hereby, the CPA shall remain in effect as
written. This First Amendment may be signed in counterparts.
If
Contractor is in agreement with the above, please indicate its agreement by
having an authorized representative sign below in the space provided and return
a signed copy of this First Amendment to the undersigned at the address
above.
Very
truly yours,
| CONTINENTAL AIRLINES, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
|
||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President | ||
|
|
||
| Agreed: CHAUTAUQUA AIRLINES, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
|
||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman & CEO | ||
|
|
||
| Agreed: REPUBLIC AIRWAYS HOLDINGS INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
|
||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman, President & CEO | ||
SCHEDULE
1
Covered
Aircraft&
Delivery Schedule
[as
amended by the First Amendment to the CPA]
|
Number1
|
Aircraft
Type2
|
Tail
Number
|
MSN
|
Scheduled
Delivery Date3
|
Scheduled
Exit Date4,5
|
Scheduled
Term4
|
Rent
Per Month6
|
|
1.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
2.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
3.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
4.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
5.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
6.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
7.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
8.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
9.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
10.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
11.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
12.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
13.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
14.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
15.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
16.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
17.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
18.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
19.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
20.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
21.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
22.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
23.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
24.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
25.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
26.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
27.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
28.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
29.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
30.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
31.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
32.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
33.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
34.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
35.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
36.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
37.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
38.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
39.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
40.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
41.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
42.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
43.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
44.
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
___________
*
Confidential
1 Up
to two
delivery positions to be designated as Spare Aircraft; provided
that if
at any time there are fewer than 22 Covered Aircraft, then only one aircraft
hereunder shall be designated as a Spare Aircraft; provided
further,
in such
event and if any such Covered Aircraft is out of service for a scheduled
maintenance check, then a second Covered Aircraft may be temporarily designated
as a Spare Aircraft during the period of such scheduled check. Delivery
positions 28 and 29 shall initially be designated as the Spare
Aircraft.
2 None
of
the ERJ Aircraft specified will have stairs, but instead shall be equipped
with
the plug door modification.
3 The
Scheduled Delivery Dates for all Covered Aircraft shall be as set forth on
Schedule 1; provided,
it is
agreed that the actual delivery date for any of aircraft specified in item
nos.
1-2, 5-10, 13-15, and 20-22 on Schedule 1 (the “Initial GECAS Aircraft”) and for
any of the aircraft specified in item nos. 23-25, 30-32, and 37-40 on Schedule
1
(the “Subsequent GECAS Aircraft”) may be later than the Scheduled Delivery Date
set forth above for such aircraft (but in no event later than 180 days after
the
last day of the month in which the Scheduled Delivery Date for such aircraft
occurs) if and to the extent that the actual delivery date for such aircraft
is
delayed in accordance with Section 23 of those certain Letters of Intent between
Contractor and GE Commercial Finance Aviation Services dated as of August 3,
2006 and October 10, 2006, respectively, but not including any delay that is
caused by or due to the fault of Contractor. Contractor may also substitute
any
aircraft constituting an Initial GECAS Aircraft or a Subsequent GECAS Aircraft
for any other aircraft constituting an Initial GECAS Aircraft or a Subsequent
GECAS Aircraft upon not written notice to Continental (it being acknowledged
that only the aircraft tail numbers and MSNs would be substituted for one
another and that the Scheduled Delivery Dates, Scheduled Exit Dates, Scheduled
Terms and rents per month would not be adjusted by any such aircraft
substitution).
4 The
Scheduled Exit Dates for all Covered Aircraft shall be as set forth on Schedule
1 (and in the case of the Initial GECAS Aircraft have been set to be the date
that is 14 days prior to the applicable scheduled aircraft head lease expiration
date and in the case of the Subsequent GECAS Aircraft will be set to be the
date
that is 14 days prior to the applicable scheduled aircraft head lease expiration
date and further shall not be scheduled to be later than the maximum period
of
months indicated as the Scheduled Term for such aircraft after the Scheduled
Delivery Date for such aircraft); provided,
if
the
actual delivery date to Continental for any of the Initial GECAS Aircraft or
Subsequent GECAS Aircraft is, in accordance with footnote 3 above, later than
the Scheduled Delivery Date, then the Scheduled Exit Date shall be extended
one
day for each such day that the actual delivery date is later than the Scheduled
Delivery Date, but in no event shall the Scheduled Exit Date be later than
the
number of months indicated on Schedule 1 as the maximum Scheduled Term for
such
aircraft (e.g., either 24 or 36 months) after the actual delivery date
hereunder. The Scheduled Exit Dates set forth on Schedule
1
shall be
adjusted from time to time to reflect any extension of the exit date for any
Covered Aircraft pursuant to this footnote 4 or Section
10.l8
of this
Agreement. With respect to the Initial GECAS Aircraft and the Subsequent GECAS
Aircraft, notwithstanding anything to the contrary in Section
10.18,
and
unless further or different extension options or notice periods are agreed
to by
the lessor with respect to any such aircraft as contemplated by Section
10.18
or
Section
10.19,
then
(a) any extension hereunder by Continental shall be for a period of 18 months
(commensurate with the lease extension periods in such lease), unless Contractor
is required to return the aircraft to such lessor at the end of the lease
extension, in which case such extension hereunder shall be for a period of
18
months less 14 days and (b) any written extension notice given by Continental
hereunder less than 10 months and 15 days prior to the scheduled expiration
of
the aircraft head lease and at least 6 months prior to the Scheduled Exit Date
of the aircraft hereunder will extend the term hereof as to such aircraft only
if the lessor of such aircraft is required to or does in fact consent to the
extension of the lease (notwithstanding that, if such be the case, such lessor
did not receive timely written notice thereof), which consent Contractor agrees
to use its commercially reasonable efforts to obtain (and in this regard,
Contractor agrees to use commercially reasonable efforts to send to such lessor
a corresponding notice of extension of such lease promptly after Contractor’s
receipt of Continental’s written notice of extension hereunder as to such
aircraft, and in any event Contractor shall send such corresponding notice
within 10 days after Contractor’s receipt of Continental’s notice).
5 The
Scheduled Exit Dates for the Subsequent GECAS Aircraft shall be finally
determined by Contractor on or before January 31, 2007 (and Contractor shall
provide an updated Schedule 1 to Continental on or before such date) and each
such Scheduled Exit Date shall be a date that complies with footnote 4 above
and
shall also be a date no earlier than 45 days prior to the two year anniversary
of the Scheduled Delivery Date specified on Schedule 1 for such aircraft. If
Contractor fails to provide such updated Schedule 1 on or before such date,
Continental will have the right to designate such dates to Contractor (provided
that such designation is consistent with these footnotes).
6 The
rent
per month shall be [*],
subject
to change in accordance with Section
10.19
of this
Agreement.
___________
*
Confidential
|
Appendix
1 to Schedule 3
|
|
Base
Compensation
Rates
|
|
[First
Amendment to CPA]
|
$ * separately
for each Covered Aircraft for each month in the Term
$[*]generally
for each Covered Aircraft for each day in the Term
$[*]for
each
actual block hour
$[*]for
each
actual flight hour
$[*]for
each
Scheduled Flight departure
$[*]for
each
Scheduled Flight departure at a Contractor Airport
$[*]for
each
day in the Term
*
This
rate, calculated separately for each Covered Aircraft, shall be the “rent per
month” set forth on Schedule 1
for such
Covered Aircraft, calculated for months in which such aircraft enters or exits
service hereunder as provided in Paragraph
A(1)(a)
of this
Schedule
3. Notwithstanding
the above, for any Covered Aircraft that is a CRJ Aircraft as indicated
on
Schedule 1
that is
delivered during the period from January 1, 2007 and through August 1, 2007,
promptly after such CRJ Aircraft is delivered to Continental under the CPA
(and
put into service for Continental hereunder), Continental shall pay an additional
amount for each such aircraft in respect of the monthly rent Contractor has
paid
for such CRJ Aircraft to the lessor thereof that is attributable to the period
of time after delivery of such CRJ Aircraft to Contractor (and the commencement
of Contractor’s monthly rental obligation to such lessor) and prior to the
actual delivery date of such CRJ Aircraft to Continental under this CPA in
accordance with Schedule
1;
provided
that,
(i) in no event shall such additional amount payable pursuant to this sentence
by Continental exceed the actual rental amounts paid by Contractor to such
lessor that are attributable to such period and (ii) any amount payable by
Continental pursuant to this sentence shall not exceed (A) more than
[*]
rent for
each such aircraft as set forth on Schedule
1,
and
(B), with respect to those three aircraft constituting any of the first six
CRJ
Aircraft specified on Schedule
1
to be
delivered to Continental hereunder and which three aircraft together have the
most rental attributable to the period of time after their delivery to
Contractor and prior to their delivery to Continental under this CPA, more
than
[*]
rent for
each such aircraft as set forth on Schedule
1.
At the
time that each such CRJ Aircraft is delivered to Continental under the CPA
(and
put into service for Continental hereunder), Contractor shall submit to
Continental an invoice for such additional amount indicating the amount of
rent
so paid by Contractor to the lessor for such aircraft (based on the above
provisions) and indicating the amount owing to Contractor from Continental
in
accordance with these provisions. Additionally, with respect to any Covered
Aircraft that is a CRJ Aircraft listed on Schedule
1
that
exits service hereunder for Continental and is being returned by Contractor
within 30 days thereafter to the lessor thereof, Continental shall pay to
Contractor an additional amount for each such aircraft in respect of the monthly
rent Contractor pays for such CRJ Aircraft to the lessor thereof that is
attributable to the period of time after the exit of such CRJ Aircraft from
service hereunder and prior to the actual redelivery date of such CRJ Aircraft
to the lessor thereof; provided,
that in
no event shall such additional amount payable pursuant to this sentence by
Continental exceed the actual rental amounts paid by Contractor to such lessor
that are attributable to such period and further that any amount payable by
Continental pursuant to this sentence shall not exceed more than [*]
rent for
each such aircraft as set forth on Schedule
1.
Within
30 days after the exiting of a CRJ Aircraft hereunder that requires an
additional payment by Continental in accordance with the foregoing provisions,
Contractor shall submit to Continental an invoice for such additional amount
indicating the amount of rent so paid by Contractor to the lessor for such
aircraft (based on the above provisions) and indicating the amount owing to
Contractor from Continental in accordance with these provisions. Contractor
agrees to use commercially reasonable efforts to minimize the amount of
additional payments to Contractor by Continental pursuant to the foregoing
four
sentences.
These
Base Compensation Rates shall be adjusted pursuant to the terms of Section
3.02
of this
Agreement.
___________
*
Confidential