EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
SERVICE AGREEMENT
Between
US AIRWAYS, INC.
And
CCAIR, INC.
Dated as of
February 25, 1999
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
RECITALS 1
ARTICLE 1 COMPLIANCE WITH REGULATIONS 2
ARTICLE 2 AIR SERVICES TO BE PROVIDED BY CONTRACTOR 3
SECTION 2.01 SCHEDULES TO BE OPERATED 3
SECTION 2.03 AIRCRAFT TO BE USED 5
SECTION 2.04 FLIGHT CREWS TO BE USED 7
SECTION 2.05 MAINLINE OPERATIONS 7
ARTICLE 3 SUPPORT SERVICES AND FACILITIES 8
SECTION 3.01 GENERAL PROVISION 8
SECTION 3.02 COMMUNICATIONS 8
SECTION 3.03 RESERVATIONS 8
SECTION 3.04 RESERVED 9
SECTION 3.05 STATION FACILITIES AND GROUND SUPPORT SERVICE 9
SECTION 3.06 TERMS OF TRANSPORTATION, SALES AND PROMOTION 11
ARTICLE 4 PASSENGER FARES AND DIVISION OF REVENUES 15
SECTION 4.01 LOCAL FARES 15
SECTION 4.02 ALL OTHER FARES 15
SECTION 4.03 DIVISION OF REVENUES 15
ARTICLE 5 AIR FREIGHT RATES 16
SECTION 5.01 JOINT AIR FREIGHT RATES 16
SECTION 5.02 COMPENSATION TO CONTRACTOR FOR AIR FREIGHT 16
ARTICLE 6 US MAIL 17
ARTICLE 7 LIABILITY INDEMNIFICATION AND INSURANCE 19
SECTION 7.01 CONTRACTOR SHALL ACT AS AN INDEPENDENT CONTRACTOR 19
SECTION 7.02 LIABILITY AND INDEMNIFICATION 19
SECTION 7.03 INSURANCE COVERAGE 21
SECTION 7.04 ADDITIONAL REQUIREMENT 23
SECTION 7.05 CARGO LIABILITY INSURANCE 25
ARTICLE 8 CONSIDERATION, RECORDS AND REPORTS 26
SECTION 8.01 CONSIDERATION 26
SECTION 8.02 RECORDS AND REPORTS 28
ARTICLE 9 EFFECTIVE DATE, TERMINATION AND CANCELLATION 30
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SECTION 9.01 EFFECTIVE DATE AND TERM 30
SECTION 9.02 TERMINATION 31
SECTION 9.03 FORCE MAJEURE 33
ARTICLE 10 OPERATING RESTRICTIONS 34
SECTION 10.0 USE OF CONTRACTOR'S AIRCRAFT 34
ARTICLE 11 TRADEMARK LICENSE FOR OPERATIONS TO BE CONDUCTED BY CONTRACTOR
PURSUANT TO THIS AGREEMENT 35
SECTION 11.01 GRANT OF TRADEMARK LICENSE 35
SECTION 11.02 TERMS AND CONDITIONS GOVERNING TRADEMARK LICENSE 35
ARTICLE 12 ENTIRE AGREEMENT, AMENDMENT, NOTICES AND TITLES 37
SECTION 12.01 ENTIRE AGREEMENT AND AMENDMENTS 37
SECTION 12.02 PREVIOUS AGREEMENT 37
SECTION 12.03 NOTICES AND MISCELLANEOUS PROVISIONS 37
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EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
SERVICE AGREEMENT
This Agreement made as of this 15th day of December 1998, by and between US
Airways, Inc., a Delaware corporation, having a principal place of business at
Crystal Park Four, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("US Airways")
and CCAir, Inc. a Delaware corporation having a principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Contractor") as follows:
WITNESSETH:
WHEREAS, US Airways holds a certificate of public convenience and
necessity issued by the Department of Transportation (DOT) authorizing US
Airways to engage in the interstate and overseas air transportation of persons,
property and mail between all points in the United States, its territories and
possessions; and
WHEREAS, Contractor is a commuter air carrier engaged in air
transportation of persons and property pursuant to Part 298 of the DOT's
Economic Regulations; and
WHEREAS, US Airways owns various trademarks, service marks and logos,
including "US Airways," "US Airways Express," and distinctive exterior color
decor and patterns on its aircraft, hereinafter referred to individually and
collectively as the "US Airways Trademarks;" and
WHEREAS, Contractor wishes to acquire a nonexclusive license, and US
Airways does hereby grant unto the Contractor, the use of one or more of US
Airways' Trademarks in connection with the scheduled air transportation services
operated by Contractor pursuant to this Agreement, including the use of the "US"
designator code; and
WHEREAS, Contractor desires to operate, and US Airways is willing to
contract for, US Airways Express operations in the manner and to the extent
hereinafter described;
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NOW, THEREFORE, for and in consideration of the foregoing premises and
the mutual covenants and obligations hereinafter set forth, the parties to this
Agreement hereby agree as follows:
ARTICLE 1 COMPLIANCE WITH REGULATIONS
Contractor hereby represents, warrants, and agrees that all air transportation
services performed by it pursuant to this Agreement or otherwise shall be
conducted in full compliance with any and all applicable statutes, orders,
rules, and regulations, whether now in effect or hereafter promulgated, of all
governmental agencies having jurisdiction over Contractor's operations,
including, but not limited to the Federal Aviation Administration (FAA) and the
DOT. Contractor's compliance with such governmental statutes, orders, rules, and
regulations shall be the sole and exclusive obligation of Contractor, and US
Airways will have no obligations or responsibilities, whether direct or
indirect, with respect to such matters.
ARTICLE 2 AIR SERVICES TO BE PROVIDED BY CONTRACTOR
SECTION 2.01 SCHEDULES TO BE OPERATED
(a) Throughout the life of this Agreement and any amendment or extension
thereof, Contractor shall schedule and operate US Airways Express service in the
following approved markets:
Minimum Maximum
Market Roundtrip Roundtrip
Charlotte----- Athens, GA [***]
Augusta, GA [***]
Columbus, GA [***]
Cincinnati, OH [***]
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Gainesville, FL [***]
Greenville, NC [***]
Hickory, NC [***]
Huntington, WV [***]
Jacksonville, NC [***]
Kinston, NC [***]
Lexington, KY [***]
Lewisburg, WV [***](1)
Lynchburg, VA [***]
Rocky Mount/Wilson, NC [***]
Southern Pines, NC [***]
Tallahassee, FL [***]
Winston-Salem, NC [***]
(b) US Airways, at its sole discretion, shall allow Contractor to operate as "US
Airways Express" in additional markets provided the Contractor complies with
Sections 2.01(c) and (e), Section 8.01(c), and provided, further, that US
Airways reserves the right to [***] as determined by US Airways in the exercise
of its sole discretion and judgment.
(c) Any changes in the schedules operated by Contractor pursuant to Section
2.01(a) or 2.0l(b) [***], must be submitted to US Airways by the deadline date
established by US Airways but not less than [***] prior to the effective date of
such changes, and all such changes must be approved, in advance by US Airways.
Requests for [***] to Section 2.01(a) and 2.01(b) must be submitted to US
Airways [***] days prior to requested service start date. Requests for changes
in Contractor's schedules must be made in writing. Before such requests are
issued, US Airways and Contractor will, as far in advance as practicable, advise
each other of any desired modifications or amendments of their respective
schedules so as to ensure that the primary needs of both the local and
connecting traffic between the cities operated by Contractor as a US Airways
Express Carrier are being adequately met. Within the operating capability of the
-------------------
(1) [***]
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aircraft used by Contractor as described in Section 2.03, or some other
substitute aircraft used by Contractor with the prior written consent of US
Airways, all reasonable and practicable requests by US Airways to Contractor to
adjust the service schedules required by Section 2.01 will be complied with by
Contractor.
(d) If Contractor provides service as "US Airways Express" in a market operated
in conjunction with US Airways Group aircraft, Contractor's scheduled departures
[***], unless specifically approved in writing by US Airways. Contractor must
adjust flight schedules to achieve a [***].
(e) Except as set forth in the table of approved markets set forth in Section
2.01(a), no terms, provision or condition contained in this Article shall be
construed [***].
(f) Contractor shall be the sole and exclusive US Airways Express operator of
propeller driven aircraft in the markets set forth in Section 2.01(a), subject
to the following:
[***]
SECTION 2.02 OPERATION OF NON-AFFILIATED FLIGHTS
Notwithstanding anything to the contrary contained in Section 2.01, Contractor
shall be entitled to operate additional services under its own name in the
markets covered by this Agreement, provided that such services, shall not make
use of any of the services or facilities afforded to Contractor by US Airways
under this Agreement and that any aircraft used in providing such services shall
not bear any US Airways Express logo or markings.
SECTION 2.03 AIRCRAFT TO BE USED
(a) Contractor will provide the scheduled air services described in Section 2.01
with short-to-medium range, multi-engine, turbine-propeller aircraft, which
aircraft shall meet the
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requirements for commuter air carrier operations set forth in Part 298 of the
DOT's Economic Regulations and the Federal Aviation Regulations. Such aircraft
shall have a minimum of 19 seats and appropriate capacity for passenger baggage,
freight and mail. Contractor and US Airways agree that except as expressly
stated otherwise herein, the Jetstream 31 aircraft are acceptable for purposes
of this Agreement provided that US Airways' ramp area, personnel, terminal and
other facilities are available and adequate to accommodate such aircraft at the
times scheduled taking into account other services performed by US Airways and
by other US Airways Express operators which use such ramp area, terminal and
other facilities.
(b) The aircraft scheduled and any replacement aircraft utilized by Contractor
pursuant to Section 2.03, shall bear US Airways' Trademarks, consisting of the
red, white, and blue aircraft exterior color decor and pattern provided by US
Airways and the name "US Airways Express." At any time during the life of this
Agreement, and at the sole discretion of US Airways, Contractor may be permitted
to use such new or different trademarks and exterior color decor and patterns on
its aircraft as US Airways may determine. Upon written notice from US Airways,
which shall include the specifications for any such changes in trademarks and/or
exterior aircraft decor and patterns, Contractor shall effect such changes as
promptly as is reasonably practicable.
In addition to use of the US Airways Trademarks on its aircraft, Contractor
shall use and display a suitable sign on the exterior of its aircraft
identifying Contractor as the operator of the services being provided pursuant
to this Agreement. The use and display of such sign shall be subject to the
prior written approval of US Airways as to its nature, size and location on
Contractor's aircraft.
(c) In addition to the aircraft described in Section 2.03(a) above, Contractor
will arrange for, and will have available for its use such [***]. Such [***]
aircraft shall meet the specifications contained in Section 2.03.
(d) Contractor will not operate any aircraft with a maximum certificated seating
capacity in
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[***] INDICATES CONFIDENTIAL INFORMATION
excess of sixty-nine (69) seats, any F28 aircraft, or any aircraft
without an external propeller without written approval by US Airways.
SECTION 2.04 FLIGHT CREWS TO BE USED
All services performed by Contractor pursuant to Sections 2.01 and 10.01 shall
be operated with at least the minimum number of qualified flight crew members
required by the Federal Aviation Agency. All such crew members shall at all
times meet all currently applicable governmental requirements, as such
requirements may be amended from time to time during the life of this Agreement,
and shall be fully licensed and qualified for the services to be performed
hereunder, and, in addition, all of Contractor's captains shall hold a current
Airline Transport Pilot Certificate. All of Contractor's first officers must
have satisfactorily completed the Airline Transport Pilot written examination by
no later than the second anniversary of consecutive employment by Contractor.
Such crew members shall also meet any and all requirements imposed by the
insurance policies which are to be maintained pursuant to Section 7.03.
SECTION 2.05 MAINLINE OPERATIONS
Nothing contained in Section 2.01 or any other provision of this Agreement shall
prevent [***].
ARTICLE 3 SUPPORT SERVICES AND FACILITIES
SECTION 3.01 GENERAL PROVISION
US Airways and Contractor will provide ground support services and facilities to
the extent and in the manner set forth in the subsequent sections of this
Article 3. Such ground support services and facilities will be furnished only
with respect to Contractor's scheduled air services described in Sections 2.01;
provided, however, that with respect to schedules operated by Contractor in
addition to the minimum schedules established by Section 2.01(a), US Airways'
obligation to provide ground support and facilities to Contractor under Section
3.05(a) shall be subject to the
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[***] INDICATES CONFIDENTIAL INFORMATION
ability and capacity of US Airways' facilities to handle such additional
schedules at costs deemed reasonable by US Airways in the exercise of its sole
discretion and judgment.
SECTION 3.02 COMMUNICATIONS
Reservation telephone lines will be maintained by US Airways at the points
listed in Section 2.01(a) connecting those cities with US Airways' reservations
center.
SECTION 3.03 RESERVATIONS
(a) All reservations will be requested and confirmed for passengers using the
services described in Sections 2.01 through US Airways' reservations system
(SABRE). Connecting reservations to US Airways or to other air carriers will be
requested and confirmed through US Airways' SABRE system in accordance with
currently established industry methods and procedures. For passengers
originating their travel at points other than those served by Contractor
pursuant to Section 2.01, either on US Airways' system or on the systems of
other airlines, connecting reservations to the services of Contractor will also
be made in accordance with currently established industry methods and
procedures. In all cases, US Airways will confirm the reservations of
Contractor's passengers through the entire itinerary of their scheduled trips.
When a contact number is supplied by the passengers making such reservations, US
Airways will assume the responsibility of notifying passengers of any changes in
Contractor's schedules or operations provided that Contractor furnishes US
Airways with sufficient advance notice of such changes.
(b) Contractor agrees to make available [***] of the scheduled daily departures,
in each market for [***] and an equal number of ("Z" Class) seats for [***].
(c) In the event of flight delays, cancellations or other schedule
irregularities affecting Contractor's scheduled services, and as soon as
information concerning such irregularities is available, Contractor shall notify
US Airways' reservations control center in a manner prescribed
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by US Airways and furnish US Airways such information in as much detail as
practicable.
(d) Contractor shall be solely responsible for, and US Airways shall have no
obligations or duties with respect to the dispatch of Contractor's flights
operated pursuant to this Agreement or otherwise. For the purposes of this
Section 3.03(d), the term flight dispatch shall include, but shall not be
limited to, all planning of flight itineraries and routings, fueling and flight
release.
(e) From time to time, and solely upon request of Contractor or its flight
crews, US Airways may furnish Contractor's flight crews with such U.S. Weather
Bureau information or data as may be available to US Airways; provided, that in
furnishing any such weather information or data to Contractor, neither US
Airways nor its employees or agents will be responsible or liable for the
accuracy thereof.
SECTION 3.04 RESERVED
SECTION 3.05 STATION FACILITIES AND GROUND SUPPORT SERVICE
(a) US Airways will provide the following services at locations (except as
mutually agreed) outlined in Section 2.01 where US Airways personnel are
represented, subject to provisions outlined in Section 3.01 and 8.01(c).
(1) check-in and ticketing of Contractor's passengers at US Airways'
ticket counters or, as appropriate, at the gate check-in areas;
(2) use of US Airways' passenger facilities by Contractor's passengers;
(3) ramp handling of Contractor's aircraft, including loading, unloading
and the handling of Contractor's passengers, baggage, freight, and mail;
but not including aircraft marshalling, checking, servicing, catering
and provision for GPU's.
(4) interline transfer of baggage, mail, and freight in accordance with
currently established industry methods and procedures;
(5) such security facilities, personnel, and passenger screening
procedures as are required (a) by applicable orders, rules, and
regulations of the FAA, and (b) by US
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Airways' FAA-approved aircraft security plan;
(6) arrangements, made at Contractor's request and its sole cost and
expense, for alternate transportation, meals, lodging, and other
accommodations for Contractor's passengers as the need therefor may
arise from time to time due to schedule irregularities in Contractor's
operations; and
(7) in the event US Airways is unable to accommodate Contractor's
scheduled air services at US Airways' own facilities, US Airways
reserves the right to provide the services and facilities herein at
another suitable location on the airport selected by mutual agreement by
the parties subject to provisions outlined in Section 8.01(c).
(b) Contractor will provide the following services and facilities at locations
not provided under Section 3.05(a):
(1) airport ticket counters, staffed by an adequate number of uniformed
ticket agents and passenger service personnel, having been fully trained
to US Airways standards;
(2) adequate check-in areas including passenger waiting room facilities;
(3) all ground support personnel, facilities, and equipment necessary to
accommodate Contractor's passengers, freight, and mail; and
(4) such security facilities, personnel and passenger screening
procedures as are required by applicable orders, rules, and regulations
of the FAA as may be required.
SECTION 3.06 TERMS OF TRANSPORTATION, SALES AND PROMOTION
(a) US Airways' Terms of Transportation, with certain exceptions as listed
therein, shall be applicable to services provided by Contractor pursuant to this
Agreement. Such Terms of Transportation shall at all times be available for
public inspection at Contractor's corporate offices and at each airport ticket
counter and sales office maintained and operated by or on behalf of Contractor.
(b) US Airways and Contractor agree that each carrier is authorized to sell air
transportation of passengers and property on the scheduled flights operated by
the other carrier; provided,
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however, that neither US Airways nor Contractor shall issue passenger tickets or
exchange orders which provide for space on a particular flight except on the
basis of a confirmed reservation for such space. Such sales will only utilize US
Airways "037" ticket stock, forms and other US Airways documents. Unless
otherwise approved by US Airways in writing, Contractor may only issue its own
ticket stock for travel on Contractors "US" designated flights to employees for
the purpose of non-revenue travel.
(c) The party issuing a ticket or exchange order for passenger
transportation shall [***]:
(1) [***]. Contractor shall prepare and furnish to US Airways all
written reports, accounts, and documentation that US Airways may require
daily or at such lesser frequency as US Airways may prescribe, at its
sole discretion, from time to time during the life of this Agreement;
and
(2) [***]. Contractor agrees to an initial US Airways [***] in
accordance with the schedule set forth below:
Schedule
When the [***] US Airways by Contractor are between the number in
Column A and the number in Column B for a period of [***],
Contractor agrees to adjust the [***] to the number in Column C.
Column A Column B Column C
-------- -------- --------
[***] and [***] [***]
[***] and [***] [***]
[***] and [***] [***]
[***] and [***] [***]
(3) With respect to passenger transportation furnished by Contractor pursuant to
this Agreement and [***] in accordance with 3.06(c) (2) above, Contractor shall
be required to furnish to US Airways passenger billing information via EBCDIC
media (magnetic tape) or ASCII media (diskette) in accordance with the
procedures as set forth in [***].
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[***]. In addition, Contractor shall prepare and furnish to US Airways all
written reports, accounts and documents that US Airways may require, on a daily
basis or at such lesser frequency as US Airways may prescribe, at its sole
discretion, from time to time during the life of this Agreement.
US Airways may prescribe in its sole discretion from time to time during the
life of this Agreement such new or different passenger and air freight sales and
accounting procedures as may be required by experience or changed circumstances.
In addition, US Airways and Contractor by mutual agreement, and with no less
than [***] notice having been given, may establish alternative or modified
passenger sales and accounting procedures in order to accommodate tickets or
exchange orders issued by air carriers which are not participants in the
Clearing House.
(g) [***]. Each party who accepts as payment a credit card charge in exchange
for issuing tickets, exchange orders or air freight bills for transportation of
persons or property on Contractor, US Airways or other carriers shall [***]. US
Airways may [***].
(h) Contractor shall assume full liability for and shall indemnify, defend,
protect, save, and hold harmless US Airways, its directors, officers, agents,
and employees from any and all liabilities1 damages, claims, suits, judgments,
and all related expenses or losses on account of the loss, misapplication, theft
or forgery of passenger tickets, exchange orders, airbills or other supplies
furnished by or on behalf of US Airways to Contractor, or the proceeds thereof,
whether or not such loss is occasioned by the insolvency of either the purchaser
of the aforesaid passenger tickets, exchange orders, airbills or other documents
or of a bank in which Contractor may have deposited such proceeds. Contractor's
responsibility hereunder for passenger tickets, exchange orders, airbills, and
other supplies shall commence immediately upon delivery of said passenger
tickets, exchange orders, airbills, and other supplies into the possession of
Contractor or any duly authorized officer, agent or employee of Contractor. US
Airways shall furnish Contractor prompt and timely notice of any claims made, or
suits instituted against US Airways which in any way may result in the
indemnification hereunder and Contractor shall have the right
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to compromise or participate in the defense of same to the extent of its own
interest.
(i) US Airways will include the scheduled air services provided by Contractor
pursuant to Section 2.01 in its public timetables. All references in US Airways'
public timetables to Contractor's US Airways Express services shall also contain
notations indicating that such scheduled services are performed by Contractor as
an independent contractor under the appropriate US Airways Trademarks.
ARTICLE 4 PASSENGER FARES AND DIVISION OF REVENUES
SECTION 4.01 LOCAL FARES
[***].
SECTION 4.02 ALL OTHER FARES
US Airways will establish all fares using the "US" designator except those
specifically addressed in Section 4.01.
SECTION 4.03 DIVISION OF REVENUES
(1) All fares will be divided in accordance with [***], unless the division of
such fares is otherwise mutually agreed to by US Airways and Contractor. [***]
(2) Where either party has a connecting middle city within the routing revenue
[***].
ARTICLE 5 AIR FREIGHT RATES
SECTION 5.01 JOINT AIR FREIGHT RATES
Throughout the life of this Agreement, US Airways and Contractor shall establish
and maintain
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joint air freight rates, including rates covering general commodity, small
package, and priority air freight shipments.
SECTION 5.02 COMPENSATION TO CONTRACTOR FOR AIR FREIGHT
For the transportation of air freight on the scheduled services to be operated
by Contractor pursuant to Section 2.01 above, US Airways will pay Contractor the
following:
(a) General Commodity Freight [***];
(b) Priority Freight [***];
(c) Small Package Freight [***].
The foregoing rates to be paid Contractor for the transportation of air freight
shall be subject to adjustment from time to time as required by experience and
as mutually agreed to by US Airways and Contractor. Operator has the right to
audit STARS Cargo reimbursement system on an annual basis.
ARTICLE 6 US MAIL
(a) Contractor shall accept for transportation, and shall transport on the
regularly scheduled air transportation services it shall operate pursuant to
Section 2.01 of this Agreement, such U.S. mail as shall be tendered to it by the
United States Postal Service (USPS) and by US Airways. In the performance of its
transportation of the U.S. mail as aforesaid, Contractor shall observe and
comply with any and all applicable postal regulations, instructions and
procedures and with any applicable orders or regulations of the DOT governing
the transportation of mail by scheduled air carriers.
(b) All mail transported by Contractor pursuant to this Article 6 shall be
transported under the currently effective service mail rates established by the
DOT or the USPS for the transportation of the U.S. mail by US Airways. US
Airways shall make all reports and keep all
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records and accounts and perform such other administrative functions as may be
required by the USPS in connection with the transportation of the mails by
Contractor in the markets covered by this Agreement.
(c) All payments by the USPS under US Airways' effective service mail rates for
the transportation of the mails by Contractor in the markets covered by this
Agreement, shall be made to US Airways. US Airways shall pay to Contractor [***]
for all categories of mail boarded on Contractor's scheduled flights. The rate
of [***] of mail boarded established by this paragraph (c) shall be subject to
adjustment from time to time during the effectiveness of this Agreement as
mutually agreed upon by US Airways and Contractor.
(d) Contractor shall assume full liability for and shall indemnify, defend,
protect, save, and hold harmless US Airways, its directors, officers, agents,
and employees from and against any and all liabilities, damages, claims,
demands, suits, judgments, including, without limitation, any and all fines,
penalties or other sanctions imposed by the USPS (including all costs, fees, and
expenses in connection therewith or incident thereto), for the loss, delay,
damage or destruction of any of the mails tendered to Contractor by the USPS or
by US Airways for transportation pursuant to this article and for any and all
violations or failures on the part of Contractor, its directors, officers,
agents, employees or independent contractors to observe and comply with any
applicable rules, regulations or orders of the USPS, the DOT, or any other duly
authorized governmental agency relating to the transportation of the mails,
arising out of, or in any way connected with the performance by Contractor, its
directors, officers, agents, employees, and independent contractors of the
transportation of the mails pursuant to this Agreement. US Airways shall give
Contractor prompt and timely notice of any claims made, suits instituted or
fines, penalties or other sanctions imposed against US Airways, which in any way
result in the indemnification hereunder, and Contractor shall have the right to
participate in the compromise, or the defense of same, at its sole expense and
to the extent of its own interest. In the event US Airways shall be required to
pay any fine, penalty or other monetary sanction imposed against US Airways
which in any way results in the indemnification hereunder, it is mutually agreed
that the amount of such fines, penalties or other monetary sanctions shall be
deducted and set off
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against payments US Airways is required to make to Contractor pursuant to
paragraph (c) above, such deduction and set out to continue until US Airways
recovers the full amount of any fine, penalty or other monetary sanction it
shall be required to pay by reason of any act or omission of Contractor, its
directors, officers, agents, employees, and independent contractors in the
performance under this article.
ARTICLE 7 LIABILITY INDEMNIFICATION AND INSURANCE
SECTION 7.01 CONTRACTOR SHALL ACT AS AN INDEPENDENT CONTRACTOR
(a) The employees, agents, and/or independent contractors of Contractor engaged
in performing any of the services Contractor is to perform pursuant to this
Agreement shall be employees, agents, and independent contractors of Contractor
for all purposes, and under no circumstances shall be deemed to be employees,
agents or independent contractors of US Airways. In its performance under this
Agreement, Contractor shall act, for all purposes, as an independent contractor
and not as an agent for US Airways. US Airways shall have no supervisory power
or control over any employees, agents or independent contractors engaged by
Contractor in connection with its performance hereunder, and all complaints or
requested changes in procedures shall, in all events, be transmitted by US
Airways to a designated officer of Contractor. Nothing contained in this
Agreement is intended to limit or condition Contractor's control over its
operations or the conduct of its business as a commuter air carrier, and
Contractor and its principals assume all risks of financial losses which may
result from the operation of the air services to be provided by Contractor
hereunder.
(b) The employees and agents of US Airways engaged in performing any of the
services US Airways is to perform pursuant to this Agreement shall be employees
and agents of US Airways for all purposes, and under no circumstances shall be
deemed to be employees and agents of Contractor. Contractor shall have no
supervision or control over any such US Airways employees and agents and any
complaint or requested change in procedure shall be transmitted by Contractor to
US Airways' designated representative.
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EXHIBIT 10.3(G)
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SECTION 7.02 LIABILITY AND INDEMNIFICATION
(a) Each party hereto assumes full responsibility for any and all liability to
its own directors, officers, employees, or agents on account of injury, or death
resulting from or sustained in the performance of their respective services
under this Agreement.
(b) Contractor shall indemnify, defend, protect, save, and hold harmless US
Airways, its directors, officers, employees, and agents from and against any and
all liabilities, claims, demands, suits, judgments, damages, and losses
(including the costs, fees, and expenses in connection therewith and incident
thereto), brought against US Airways, its directors, officers, employees or
agents by or on behalf of any director, officer, employee, agent or independent
contractor of Contractor or anyone else claiming through such persons, or by
reason of damage or destruction of property of any such person, or injury to or
death of such person, caused by or arising out of any act or omission occurring
while this Agreement is in effect. US Airways shall give Contractor prompt and
timely notice of any claim made or suit instituted against US Airways which in
any way results in indemnification hereunder, and Contractor shall have the
right to compromise or participate in the defense of same to the extent of its
own interest.
(c) Each party, with respect to its own employees, accepts full and exclusive
liability for the payment of worker's compensation and/or employer's liability
insurance premiums with respect to such employees, and for the payment of all
taxes, contributions or other payments for unemployment compensation or old age
benefits, pensions or annuities now or hereafter imposed upon employers by the
government of the United States or by any state or local governmental body with
respect to such employees measured by the wages, salaries, compensation or other
remuneration paid to such employees or otherwise, and each party further agrees
to make such payments and to make and file all reports and returns, and to do
everything necessary to comply with the laws imposing such taxes, contributions
or other payments.
(d) Contractor hereby assumes liability for and shall indemnify, defend,
protect, save, and
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EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
hold harmless US Airways, its directors, officers, agents, and employees from
and against any and all liabilities, claims, demands, suits, judgments, damages,
and losses (including all costs, fees, and expenses in connection therewith or
incident thereto), for death of or injury to any person whomsoever, including,
but not limited to Contractor's directors, officers, employees, or agents, and
for loss of, damage to, or destruction of any property whatsoever, including any
loss of use thereof, and including, but not limited to, property of Contractor,
its directors, officers, employees or agents, caused by, arising out of, or in
any way related to the performance, operations, and any acts or omissions of
either Contractor or US Airways, or their respective directors, officers,
employees, and agents, except for the gross negligence or willful misconduct of
US Airways, its directors, officers, employees or agents, which are in any way
related to the services contemplated by this Agreement, and in the case of
Contractor alone, any other services, or acts or omissions or the use,
operation, storage or possession of any aircraft, whether or not bearing US
Airways Express exterior decor, colors, and logo, and whether or not used in
performance of the services contemplated hereby or in connection with any other
services permitted by Article 10, or otherwise. US Airways shall give Contractor
prompt and timely notice of any claim made or suit instituted against US Airways
which in any way results in indemnification hereunder, and Contractor shall have
the right to compromise or participate in the defense of same to the extent of
its own interest.
SECTION 7.03 INSURANCE COVERAGE
(a) In consideration of the privileges granted herein, Contractor shall, at all
times during the effectiveness of this Agreement, commencing with the first day
thereof, have and maintain in full force and effect policies of insurance
satisfactory to US Airways, of the types of coverage, including coverage on all
aircraft described in Section 2.03, and in the minimum amounts stated below with
companies satisfactory to US Airways and under terms and conditions satisfactory
to US Airways as follows:
Minimum Amounts of Insurance Coverage (US Currency)
17
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
1. AIRCRAFT LIABILITY AND GROUND LIABILITY INSURANCE
(Including Comprehensive Public Liability)
a. Bodily Injury and Personal Injury -Passengers
b. Bodily Injury and Personal Injury -Third Parties
c. Property Damage
The minimum amounts of insurance coverage required under this paragraph
shall be [***], per occurrence, combined single limit for all coverage
required under this paragraph 1 utilizing aircraft with less than [***]
seats and [***] per occurrence combined single limit liability for all
coverage utilizing aircraft with [***] or greater seating capacity.
Per Accident
2. ▇▇▇▇▇▇▇' S COMPENSATION INSURANCE:
(Company Employees) Statutory
3. EMPLOYER' S LIABILITY:
(Company Employees) [***]
4. ALL RISK HULL INSURANCE [***]
ON AIRCRAFT PERFORMING [***]
SERVICES HEREUNDER: [***]
5. BAGGAGE LIABILITY: [***] (Per Passenger)
6. CARGO LIABILITY: [***] Any One Aircraft
[***] Any One Disaster
With Terms, Limitations and
Conditions Acceptable to
18
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
US Airways
(b) The parties hereby agree that from time to time during the life of this
Agreement, US Airways may require Contractor to have and maintain greater
coverage than the amounts set forth in paragraph (a) above, should the
circumstances and conditions of Contractor's operations under this Agreement be
deemed in US Airways' sole judgment, to require reasonable increases in any or
all of the foregoing minimum insurance coverage.
SECTION 7.04 ADDITIONAL REQUIREMENT
(a) Contractor shall cause the policies of insurance described in Section 7.03
to be duly and properly endorsed by Contractor's insurance underwriters as
follows:
(1) as to the policies of insurance described in paragraphs 1, 2, 3, 4,
5, and 6 of said Section 7.03(a);
(A) to provide that any waiver of rights of subrogation against
other parties by Contractor will not affect the coverage provided
hereunder with respect to US Airways; and
(B) to provide that Contractor's underwriters shall waive any and
all subrogation rights against US Airways its directors,
officers, agents, and employees without regard to any breach of
warranty on the part of Contractor or to provide other evidence
of such waiver of recourse against US Airways, its directors,
officers, agents, or employees as shall be acceptable to US
Airways.
(2) as to policies of insurance described in paragraphs 1, 5, and 6 of
said Section 7.03(a)
(A) to provide that US Airways, its directors, officers, agents,
and employees shall be endorsed as Additional Insured parties
thereunder; and
(B) to provide that said insurance shall be primary insurance and
to acknowledge that any other insurance policy or policies of US
Airways shall be secondary or excess insurance;
(3) as to policies of insurance described in paragraphs 1 and 4
of said Section
19
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
7.03(a) to provide a breach of warranty clause to said policies
acceptable to US Airways;
(4) as to policies of insurance described in paragraph 1 only of
said Section 7.03(a):
(A) to provide, with respect to claims in favor of US
Airways, its directors, officers, agents and employees
against Contractor, its directors, officers, agents and
employees, that US Airways, its directors, officers,
agents, and employees shall not be deemed to be insured
under the said insurance policies, and to [***]; and
(B) to provide contractual liability insurance coverage
for liability assumed by Contractor under this Agreement.
(5) as to policies of insurance described in paragraph 4 above of
said Section 7.03(a), to provide that said Aircraft Hull
Insurance shall be [***] basis, and, except with the consent of
US Airways, shall not be subject to more than [***] deductibles
in the event of loss, settled on the basis of a total loss, all
losses shall be payable in full;
(6) as to any insurance obtained directly from foreign
underwriters, to provide that US Airways may maintain against
said Contractor's underwriters a direct action in the United
States upon said insurance policies and to this end provide a
standard service of suit clause designating a United States
attorney in Washington, D.C. or New York, N.Y.
(b) Contractor shall cause each of the insurance policies referred to in Section
7.03 to be duly and properly endorsed to provide that said policy or policies or
any part or parts thereof shall not be cancelled, terminated or materially
altered, changed or amended by Contractor's insurance underwriters, until after
[***] written notice to US Airways which [***] notice period shall commence to
run from the date such notice is actually received by US Airways.
(c) Upon the effective date of this Agreement, and from time to time thereafter
upon request by US Airways, Contractor shall furnish to US Airways evidence
satisfactory to US Airways of
20
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
the aforesaid insurance coverage and endorsements, including certificates
certifying that the aforesaid insurance policy or policies with the aforesaid
policy limits are duly and properly endorsed as aforesaid and are in full force
and effect. Initially, this evidence shall be certified copies of the policies
required hereunder.
(d) In the event Contractor fails to maintain in full force and effect any of
the insurance and endorsements described in Sections 7.03 and 7.04, US Airways
shall have the right (but not the obligation) to procure and maintain such
insurance or any part thereof. The cost of such insurance shall be payable by
Contractor to US Airways upon demand by US Airways. The procurement of such
insurance or any part thereof by US Airways does not discharge or excuse
Contractor's obligation to comply with the provisions of Sections 7.03 and 7.04.
Contractor agrees not to cancel, terminate or materially alter, change or amend
any of the policies referred to in Section 7.03 until after providing [***]
advance written notice to US Airways, of its intent to so cancel, terminate or
materially alter, change or amend said policies of insurance, which [***] notice
period shall commence to run from the date notice is actually received by US
Airways.
SECTION 7.05 CARGO LIABILITY INSURANCE
US Airways agrees to make available to Contractor cargo liability insurance
coverage under US Airways' cargo liability insurance policy solely with respect
to air freight transported by Contractor under a US Airways airfoil in scheduled
air services operated pursuant to Sections 2.01 and 2.03 and such coverage shall
be deemed to satisfy Contractor's obligation to have and maintain in full force
and effect cargo liability insurance coverage in accordance with the terms of
Section 7.03(a)(6), provided however, that US Airways may cancel, terminate,
alter, change or amend the cargo liability insurance coverage furnished to
Contractor pursuant to this Section 7.06, upon [***] written notice to
Contractor, and provided. further, if US Airways cancels or terminates such
coverage with respect to Contractor, Contractor shall furnish US Airways
evidence, on or before the effective date of such cancellation or termination,
that it has obtained cargo liability insurance coverage in accordance with
Section 7.03(a)(6).
21
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
ARTICLE 8 CONSIDERATION, RECORDS AND REPORTS
SECTION 8.01 CONSIDERATION
(a) For and in consideration of [***] to be provided to Contractor hereunder;
the [***] granted to Contractor authorizing the specified uses of US Airways'
Trademarks and other valuable consideration provided by this Agreement,
Contractor shall pay to US Airways Service Charges as follows:
[***]
(b) Contractor shall remit such Service Charges to US Airways [***], but in no
event later than [***]. In the event Contractor fails to pay US Airways in full
all Service Charges payable hereunder when due, Contractor agrees to pay to US
Airways, in addition to such Service Charges, interest on the unpaid balance of
such Service Charges computed at the rate per annum of [***] charges at its
principal office in New York on short-term loans to large businesses with the
highest credit standing, with a minimum rate per annum of [***] from the due
date thereof to the date of payment.
(c) It is hereby mutually agreed and understood by the parties hereto that the
aforesaid Service Charges [***] contemplate that in the performance of the
services described in Article 3 hereof, [***].
(d) The aforesaid Service Charges [***] shall be subject to adjustment by US
Airways from time to time during the term of this Agreement in order to more
accurately reflect US Airways' cost experienced in furnishing the services
contemplated hereby. Such adjustments shall be made upon [***] advance notice in
writing from US Airways to Contractor.
(e) All payments and/or reimbursements contemplated in this Article shall be
deemed to be in addition to and not in lieu of any other payments and/or
reimbursements required of either party hereto by other articles of this
Agreement, including but not limited to Article 3.
22
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
23
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
SECTION 8.02 RECORDS AND REPORTS
(a) Contractor shall provide reports in a form acceptable to US Airways
detailing scheduled air services operated by Contractor pursuant to Sections
2.01.
(1) Reports due by the [***] of the following [***] shall contain the
following minimum:
[***]
(2) Reports due by the 5th working day of the month shall contain the
following minimum:
[***]
(3) Operator's Dispatch shall report immediately to US Airways' System
Control for inclusion into B.A.S.I.S any incident, accident (ground or
flight) that affects or could affect the safety of any operations
conducted under this Agreement.
(b) Contractor shall furnish US Airways once every [***] unaudited financial
statements including Contractor's current corporate balance sheets and profit
and loss statements, and within [***] after the close of its fiscal year,
Contractor shall furnish US Airways with audited financial statements including,
separately and on a consolidated basis, the balance sheet and profit and loss
statement of Contractor. If Contractor is a subdivision, subsidiary or other
entity, then this paragraph shall be a specific requirement of that entity, not
the consolidated unit.
(c) At US Airways' option, an authorized representative of US Airways may
inspect Contractor's corporate records and accounts once during each calendar
quarter during the life of this Agreement.
(d) Contractor shall promptly furnish US Airways a copy of every report that
Contractor files with the DOT, or some successor agency and such other traffic,
operating and financial information as US Airways may request, from time to
time, during the life of this Agreement.
(e) Contractor shall also promptly furnish US Airways with a copy of every
report that
24
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
Contractor prepares, whether or not such report is filed with the FAA, National
Transportation Safety Board (NTSB) or any other governmental agency, relating to
any accident or incident involving an aircraft used by Contractor in performing
services under this Agreement, whether or not such aircraft bears any US Airways
Trademarks, when such accident or incident is claimed to have resulted in the
death of or injury to any person or the loss of, damage to or destruction of any
property.
(f) Contractor shall promptly notify US Airways in writing of (i) any change in
or relinquishment of the ownership or control of Contractor or (ii) any
agreement contemplating such a change or relinquishment. Contractor agrees to
provide promptly a copy of such agreement, if in writing, to US Airways.
ARTICLE 9 EFFECTIVE DATE, TERMINATION AND CANCELLATION
SECTION 9.01 EFFECTIVE DATE AND TERM
(a) This Agreement will become effective on the date first written above and
will continue in effect thereafter until December 31, 2003, unless it is
terminated at an earlier date pursuant to one or more of the provisions of this
Article 9.
(b) The scheduled air transportation services to be operated by Contractor as
from time to time established pursuant to Section 2.01 shall be maintained,
without interruption, throughout the term of this Agreement, except and until
such scheduled transportation services are modified in accordance with Section
2.01.
(c) In the event there is any change in the statutes governing the economic
regulation of air transportation, or in the applicable rules, regulations or
orders of the DOT or some successor agency or department of the government
having jurisdiction over air transportation which change or changes materially
affect the rights and/or obligations presently in force with respect to the air
transportation services of US Airways or Contractor, or both, then the parties
hereto will consult,
25
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
within thirty (30) days after any of the occurrences described herein, in order
to determine what, if any, changes to this Agreement are necessary or
appropriate, including but not limited to the early termination and cancellation
of this Agreement. If the parties hereto are unable to agree whether any change
or changes to this Agreement are necessary and proper, or as to the terms of
such changes, or whether this Agreement should be cancelled in light of the
occurrences described above, and such failure to reach agreement shall continue
for a period of thirty (30) days following the commencement of the consultations
provided for by this Section 9.01(c), then this Agreement may be cancelled by
either US Airways or Contractor upon providing the other party a minimum of
ninety (90) days' written notice of such cancellation.
SECTION 9.02 TERMINATION
(a) In addition to the foregoing provisions of this Article, this Agreement may
be cancelled or terminated by either US Airways or Contractor if there is an
assignment of this Agreement or of any of the rights, duties or obligations
created hereunder with respect to any party to this Agreement without the
written consent of the other party. In the event that this Agreement is
assigned, whether by operation of law or otherwise, without such consent having
been given in writing, the party not making the assignment shall have the right
immediately to terminate the Agreement by telegraphic or written notice to the
other party. Notwithstanding the foregoing, US Airways may, without consent of
the other party hereto, assign, or transfer this Agreement to any company into
which or with which US Airways or its successors may be merged, combined or
consolidated, or which may otherwise succeed to substantially all of US Airways'
assets.
(b) In the event that US Airways shall file a voluntary petition in bankruptcy
or that proceedings in bankruptcy shall be instituted against it and US Airways
shall be adjudged bankrupt, or that a court shall take jurisdiction of US
Airways and its assets pursuant to proceedings brought under the provisions of
any federal reorganization act, or that a receiver of US Airways' assets shall
be appointed and such taking or appointment shall not be stayed or vacated
within a period of sixty (60) days, Contractor may thereupon terminate this
Agreement by fifteen (15) days' prior written notice to US Airways.
26
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
(c) If US Airways shall fail to perform, keep, and observe any of the terms,
covenants or conditions herein contained on the part of US Airways to be
performed, kept or observed, Contractor may give US Airways notice in writing to
correct such condition or cure such default and, if any such condition or
default shall continue for sixty (60) days after the receipt of such notice by
US Airways and, if within such period of time US Airways has not prosecuted with
diligence the correction of such condition or default, Contractor may then
terminate this Agreement upon fifteen (15) days' prior written notice, and this
Agreement shall thereupon cease and expire at the end of such fifteen (15) days
in the same manner and to the same effect as if it were the expiration of the
original term.
(d) US Airways, in addition to the other provisions of this section and Section
9.01 above, may terminate this Agreement upon not less than sixty (60) days'
written notice to the other party hereto should any one of the following
conditions occur during the time this Agreement is in effect:
(1) if Contractor fails to maintain the minimum operations in any of the
markets as specified from time to time in Section 2.01(a) during the
effectiveness of this Agreement, or fails to retain and/or utilize the
aircraft specified in Section 2.03 in the manner provided in Article 2,
except as otherwise provided herein;
(2) if, during any one (1) calendar month during the life of this
Agreement, Contractor's flight completion factor shall fall below
ninety-five percent (95%) due to cancellations attributable to
maintenance or operational deficiencies within Contractor's normal
management control;
(3) if Contractor fails to comply with the trademark license provisions
of Article 11 of this Agreement;
(4) in the event that Contractor shall file a voluntary petition in
bankruptcy or that proceedings in bankruptcy shall be instituted against
it and Contractor shall be adjudged bankrupt, or that a court shall take
jurisdiction of Contractor, and its assets pursuant to proceedings
brought under the provisions of any federal reorganization act, or that
a receiver of the assets of Contractor shall be appointed and such
taking or appointment
27
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
shall not be stayed or vacated within a period of sixty (60) days, or
that Contractor shall be divested of, or be prevented by any action of
any federal authority from conducting and operating its air
transportation operations, or any of Contractor's aircraft shall be
grounded by any governmental authority having jurisdiction;
(5) if Contractor shall fail to perform, keep, and observe any of the
terms, covenants or conditions herein contained on the part of such
party to be performed, kept or observed, US Airways may give Contractor
notice in writing to correct such condition or cure such default and, if
any such condition or default shall continue for ten (10) days after the
receipt of such notice and if within such period of time the correction
of such condition or default has not been accomplished; provided,
however, that Section 9.02(d)(2) above shall not be applicable to this
sub-section.
(6) if there is, without the written approval of US Airways first had
and obtained, any change in or relinquishment of the ownership or
control or President or chief Executive Officer of Contractor. For
purposes of this Agreement, ownership or control of Contractor shall
consist of voting control of twenty-five percent (25%) of the
outstanding voting capitol stock of Contractor.
(e) Either US Airways or Contractor may terminate this Agreement without cause
at any time upon one hundred eighty (180) days' written notice to the other
party. US Airways incurs substantial personnel, facilities and other costs in
contemplation of continued provision of Contractor's US Airways Express
services, which costs cannot be eliminated without adequate advance notice. In
the event Contractor terminates this Agreement on less than one hundred eight
(180) days' written notice, Contractor agrees to pay to US Airways [***]. Such
costs shall include, but are not limited to, [***].
(f) Any early termination or cancellation of one or more of the provisions of
this Article 9 shall not be construed so as to relieve any party hereto of any
debts or monetary obligations to the other party that shall have accrued
hereunder prior to the effective date of such termination or cancellation.
28
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
SECTION 9.03 FORCE MAJEURE
Neither US Airways nor Contractor shall be liable for any failure to perform
under this Agreement if such failure is due to causes beyond its control,
including, but not limited to, acts of God or the public enemy, fire, floods,
epidemics, quarantine or strikes; provided. however, that the foregoing shall
not apply to the obligations assumed by Contractor under Article 7 of this
Agreement.
ARTICLE 10 OPERATING RESTRICTIONS
SECTION 10.01 USE OF CONTRACTOR'S AIRCRAFT
In the event that aircraft owned and/or operated by Contractor bearing the US
Airways Trademarks are available and can be utilized without adversely affecting
in any manner the regular scheduled services operated pursuant to Sections 2.01,
such aircraft may be used:
(1) for nonscheduled planeload passenger charters; or
(2) for scheduled or nonscheduled services limited to the transportation
of freight and/or mail in markets other than the markets described in
Section 2.01; or
(3) on an emergency basis in operations not covered by this Agreement.
ARTICLE 11 TRADEMARK LICENSE FOR OPERATIONS TO BE CONDUCTED BY
CONTRACTOR PURSUANT TO THIS AGREEMENT
SECTION 11.01 GRANT OF TRADEMARK LICENSE
Contractor will conduct all operations described in Section 2.01 above, and any
additional operations undertaken by subsequent amendment hereto, under the
service ▇▇▇▇ "US Airways Express" and shall utilize the US Airways service marks
consisting of the exterior color decor and patterns on its aircraft as
prescribed by US Airways. US Airways hereby grants to Contractor a nonexclusive,
nontransferable license to use such US Airways service marks in connection
29
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
with the services to be rendered by Contractor under this Agreement; provided.
however, that at any time during the life of this Agreement, US Airways may
alter, amend or revoke the license hereby granted and require Contractor's use
of any new or different US Airways service marks in conjunction with the air
transportation services provided hereunder as US Airways may determine in the
exercise of its sole discretion and judgment.
SECTION 11.02 TERMS AND CONDITIONS GOVERNING TRADEMARK LICENSE
(a) Contractor hereby acknowledges US Airways' ownership of the US Airways
service marks, further acknowledges the validity of the US Airways service
marks, and agrees that it will not do anything in any way to infringe or abridge
US Airways' rights in its service marks and trademarks or directly or indirectly
to challenge the validity of the US Airways service marks.
(b) Contractor agrees that, in providing the services to be provided under this
Agreement in conjunction with one or more of the US Airways service marks, it
will conform to such standards of service (including types of aircraft,
qualification of personnel, customer service standards, and other reasonable
quality control measures) as may be prescribed by US Airways either specifically
in this Agreement or by subsequent communications to Contractor. US Airways
shall have the right, through such agents or representatives as it may
designate, to inspect the services and standards being performed by Contractor
under this Agreement and in the event that, in US Airways' opinion, there has
been some deviation from such services and/or standards, Contractor agrees upon
written notice from US Airways to rectify promptly any such deviation.
(c) Contractor shall not, without US Airways' express prior written consent,
advertise the services to be rendered hereunder, nor make use of the US Airways
Trademarks referred to in Section 11.01 above in any advertising. US Airways
shall have absolute discretion to withhold its consent concerning any and all
such advertising and use of the US Airways Trademarks in advertising by
Contractor. In the event US Airways approves the use of such US Airways
Trademarks in any advertising, such advertising shall identify US Airways as the
owner of such trademark(s), and to the extent that any ▇▇▇▇ is registered, shall
so specify.
30
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
(d) To the extent that Contractor is licensed to use the ▇▇▇▇ "US Airways,"
Contractor will use said ▇▇▇▇ only in the ▇▇▇▇ "US Airways Express" and then
only in conjunction with the services specifically embraced by this Agreement.
(e) Nothing in this Agreement shall be construed to give Contractor the
exclusive right to use the US Airways Trademarks, or to bridge US Airways' right
to use and/or to license its trademarks, and US Airways hereby reserves the
right to continue use of the US Airways Trademarks and to license such other
uses of said trademarks as US Airways may desire.
(f) No term or provision of this Agreement shall be construed to preclude the
use of the trademarks "US Airways Express" or the aircraft exterior color decor
and patterns by other individuals or corporations not covered by this Agreement.
(g) Should this Agreement be cancelled or otherwise terminated for any reason as
set forth in Article 9 hereof, the license permitting Contractor to use the US
Airways Trademarks shall terminate and such marks shall not thereafter be used
by Contractor in connection with any operations of Contractor.
ARTICLE 12 ENTIRE AGREEMENT, AMENDMENT, NOTICES AND TITLES
SECTION 12.01 ENTIRE AGREEMENT AND AMENDMENTS
(a) This Agreement represents the entire agreement between the parties hereto
unless subsequently amended as hereinafter provided, and said Agreement shall
not be modified or cancelled by mutual agreement or in any manner except by an
instrument in writing, executed by the parties or their respective successors in
interest.
(b) The parties hereto may by mutual agreement amend any provision of this
Agreement, or delete or add any provision to this Agreement by an instrument in
writing, executed by each of
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EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
the parties or their authorized representatives or successors in interest Any
amendment, deletion or additions executed as prescribed herein shall become a
part of, and shall be construed as part of this Agreement.
SECTION 12.02 PREVIOUS AGREEMENT
This Agreement cancels and supersedes all previous Service Agreements, including
the Service Agreement dated November 1, 1988.
SECTION 12.03 NOTICES AND MISCELLANEOUS PROVISIONS
(a) Any and all notices, approvals or demands required or permitted to be given
by the parties hereto shall be sufficient if sent by certified mail, postage
prepaid, overnight delivery service, or facsimile to US Airways addressed to:
Vice President-Express Division Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
US Airways Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
Crystal Park Four
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to
Contractor, addressed to:
President Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
CCAir, Inc. Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other addresses in the continental United States as the parties may
specify by notice as provided herein.
32
EXHIBIT 10.3(G)
[***] INDICATES CONFIDENTIAL INFORMATION
(b) Description titles contained in this Agreement are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
(c) This Agreement shall be governed by and construed and enforced in accordance
with the laws of the [***] as though the entire agreement were performed in
[***] and without regard to [***] conflict of laws statutes. The Parties further
agree that they consent to the jurisdiction of the [***] or the federal courts
located within the [***] and waive any claim of lack of jurisdiction or forum
non conveniens.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be entered
into and signed as of the day and year first written above.
CCAIR, Inc.
WITNESS: __________________________ By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and CEO
US Airways
WITNESS:____________________________ By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
US Airways Express
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