Exhibit 10.40
CODESHARE AGREEMENT
between
TRANS STATES AIRLINES, INC.
and
CHAUTAUQUA AIRLINES, INC.
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CODESHARE AGREEMENT
This Codeshare Agreement (this "AGREEMENT"), dated as of August 5, 2002,
is entered into by and between Trans States Airlines, Inc., a corporation
organized under the laws of the State of Missouri with its principal office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("TRANS STATES" or "MARKETING CARRIER"),
and Chautauqua Airlines, Inc. a corporation organized under the laws of New
York, with its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("OA" or "OPERATING CARRIER").
In consideration of the mutual covenants and promises in this Agreement,
OA and Trans States hereby agree as follows:
1. DEFINITIONS
1.1 Capitalized terms used in this Agreement shall have the meanings
set forth in Annex A, unless the context expressly provides otherwise.
1.2 No provision of this codeshare agreement shall in any way amend or
modify the terms and conditions of the American Connection Turbo Prop Air
Services Agreement, dated as of August 10, 2001, by and between American
("American") and Trans States, as amended, and the American Connection Air
Services Agreement, dated as of June 12, 2002, by and between American and the
Operating Carrier (collectively, the "Air Services Agreements"). Reference
herein to either party's Air Services Agreement shall not relieve such party
of its confidentiality obligations under such Air Services Agreement and each
of Trans States and OA acknowledges that it does not have the right to share
the terms of its Air Services Agreement with the other. Use of the code is
subject to compliance with the Operating Carriers Air Services Agreement.
2. CODESHARE SERVICE
2.1 OA agrees to place the Code ("AX") of Trans States on each of its
Feeder Air Service Flights (each, a "CODESHARED FLIGHT") serving the
city-pairs (each a "CODESHARED ROUTE") designated under the Air Services
Agreement between OA and American and as may be changed from time to time in
accordance with the Air Services Agreement
2.2 The Operating Carrier for each Codeshared Flight shall provide to
the Codeshared Passengers, at a minimum, the same standard of customer service
as it provides to its own passengers.
2.3 The Conditions of Carriage of the Marketing Carrier, including its
limits of liability to passengers, shall govern the transportation of
Codeshared Passengers.
3. IMPLEMENTATION EXPENSES. Each party shall bear its own costs and
expenses of performance under this Agreement.
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4. PRODUCT DISPLAY
4.1 The Marketing Carrier may identify the Codeshared Flights, to the
extent permitted by governmental rules and regulations, in Airline Guides,
CRSs, Reservations Systems and other sources of airline schedule information
using the Marketing Carrier's Code.
4.2 Each party may use its own flight number in referencing the
Codeshared Flights except that only the Operating Carrier's flight number
shall be used in actual flight operations (e.g., air traffic control).
5. TRAFFIC DOCUMENT ISSUANCE AND FINANCIAL SETTLEMENT
5.1 Passenger traffic documents for use on the Codeshared Flights may
be issued by either party on '001' ticket stock, or by third parties with whom
the parties from time to time have interline traffic agreements.
5.2 Financial settlements between the parties shall be as set forth in
the Air Services Agreements. Nothing in this section shall supercede any
portion of the applicable Air Services Agreements.
6. TRAINING
6.1 Except as otherwise agreed, each party shall provide or arrange,
at its own cost and expense, all initial and recurring training of its
personnel to facilitate the Codeshared Flights and operations at airports
served by the Codeshared Flights, including reservations and ticket offices,
and other points of contact between the parties and the public.
6.2 The parties shall share any training materials developed to
support the Codeshared Flights. All proprietary rights to any materials
exchanged shall remain with the party who originally developed such materials.
7. SECURITY
7.1 The parties shall cooperate in matters of security procedures,
requirements, and obligations at all airports served by the Codeshared Flights.
7.2 The Operating Carrier reserves the right to apply the provisions
of its own security programs to the carriage of all passengers, baggage and
cargo on board the Codeshared Flights, but shall, at a minimum, comply with
the standards set forth by the relevant Competent Authorities and be
reasonably acceptable to the Marketing Carrier, with the understanding that
safety and security are of the utmost importance to both carriers. Such
provisions may include any then applicable procedures used for the physical
screening of passengers, baggage or cargo, interviewing of passengers, and/or
selective loading of baggage or cargo.
7.3 Nothing in this Section shall supercede any portion of the
applicable Air Services Agreement
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8. SAFETY AND MAINTENANCE
8.1 The Operating Carrier shall have sole responsibility for the
maintenance of its leased and owned aircraft, and for other equipment used in
connection with the Codeshared Flights. Maintenance of such aircraft and
equipment must, at a minimum, comply with the standards imposed by the
relevant aeronautical authorities.
8.2 The Marketing Carrier shall have the right to require an industry
standard safety and/or service audit of Operating Carrier's operations of
Codeshared Flights. Such audit shall be conducted by a third party, only that
information related to the safety and/or service of the Codeshared Flights
shall be provided to Marketing Carrier. All costs associated with this audit
shall be paid for by Marketing Carrier. NOTWITHSTANDING THE FOREGOING, THE
MARKETING CARRIER DOES NOT UNDERTAKE ANY RESPONSIBILITY OR ASSUME ANY
LIABILITY FOR ANY ASPECT OF THE OPERATING CARRIER'S OPERATIONS, NOR SHALL THE
OPERATING CARRIER BE ENTITLED TO ASSERT ANY RESPONSIBILITY OR ASSUMPTION OF
LIABILITY ON THE PART OF THE MARKETING CARRIER FOR THE OPERATING CARRIER'S
OPERATIONS.
8.3 The Operating Carrier shall employ prudent safety and loss
prevention policies on the Codeshared Flights. The Operating Carrier has final
authority and responsibility concerning the operation and safety of the
aircraft and its passengers. In emergencies, the parties shall adhere to the
emergency procedures for Codeshare Passengers set forth in the Procedures
Manual.
9. [INTENTIONALLY LEFT BLANK]
10. TRADEMARKS AND CORPORATE IDENTIFICATION
10.1 OA acknowledges for all purposes that any and all logos,
trademarks, service marks, and trade names of Trans States, whether registered
or not, are and shall at all times remain the exclusive property of Trans
States, and may not be used without the prior written consent of such party,
except as set forth herein. OA further acknowledges that any goodwill or other
rights that arise as a result of the use by it of Trans States's marks, as
permitted under this Agreement, shall accrue solely to the benefit of Trans
States. Should any right, title or interest in the logos, trademarks, service
marks or trade names of a party become vested in OA, OA shall hold such right,
title and interest in trust for the benefit of Trans States and shall, at the
request of Trans States, promptly and unconditionally assign such right, title
and interest to Trans States without royalties or compensation of any kind.
10.2 Trans States hereby grants to OA a non-exclusive,
non-transferable, royalty-free license for the term of this Agreement to use
its respective service marks - "AX" and "TRANS STATES AIRLINES" (each a
"LICENSED TRADEMARK"), subject to the terms and conditions set forth in this
Section 10. This license is limited to the use of the Licensed Trademarks in
connection with the operation, advertising and promotion of the Codeshared
Flights contemplated by this Agreement.
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10.3 OA agrees to use the Licensed Trademarks only in a manner approved
in advance and in writing by Trans States. Each Licensed Trademark shall be
marked with an -Registered Trademark- or SM or other symbol, as appropriate,
and reference a legend indicating that "TRANS STATES AIRLINES IS A SERVICE
▇▇▇▇ OF TRANS STATES AIRLINES, INC.", as the case may be, or similar words to
that effect.
11. REPRESENTATIONS AND WARRANTIES
11.1 Each of OA and Trans States hereby represents and warrants to the
other as follows:
(a) It is a duly incorporated and validly existing corporation,
in good standing under the laws of its jurisdiction of incorporation; is an
air carrier duly authorized to act as such by the government of its country of
incorporation; and has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement. The execution,
delivery, and performance of this Agreement by it have been duly authorized by
all necessary corporate action. This Agreement has been duly executed and
delivered by it, and, assuming due authorization, execution, and delivery by
the other party hereto, this Agreement constitutes its legal, valid, and
binding obligation, enforceable against it in accordance with its terms,
except to the extent that enforceability may be limited or modified by the
effect of bankruptcy, insolvency or other similar laws affecting creditors'
rights generally, and the application of general principles of equity and
public policy.
(b) The execution, delivery or performance by it of this
Agreement, shall not: (i) contravene, conflict with or cause a default under
(A) any applicable law, rule or regulation binding on it, or (B) any provision
of its Charter, Certificate of Incorporation, Bylaws or other documents of
corporate governance; or (ii) contravene, or cause a breach or violation of,
any agreement or instrument to which it is a party or by which it is bound,
except where such conflict, contravention or breach would not have a material
adverse effect on it and its Affiliates, or on the operations of it or its
Affiliates, taken as a whole or on its ability to perform this Agreement.
(c) The execution, delivery and performance by it of this
Agreement do not require the consent or approval of, or the giving of notice
to, the registration with, the recording or filing of any documents with, or
the taking of any other action in respect of, any Competent Authority, any
trustee or holder of any of its indebtedness or obligations, any stockholder
or any other person or entity, other than the Governmental Approvals (to be
obtained by it, as indicated in Annex F), except where failure to obtain or
take such action would not have a material adverse effect on it or a material
adverse effect on the transactions contemplated in this Agreement.
11.2 Each of the foregoing representations and warranties shall survive
the execution and delivery of this Agreement.
12. TERM
12.1 The term of this Agreement shall commence on the date hereof and
shall continue until August 5, 2005, unless earlier terminated pursuant to
Section 22 (Severability).
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Notwithstanding the foregoing, this Agreement shall terminate no later than
the date that either party's Air Services Agreement terminates or the date
that American's Codeshare Agreement with Trans States terminates. Each party
Agrees to provide the other party with at least 10 Business days prior written
notice of such termination.
12.2 In the event of termination or expiration of this Agreement, the
Marketing Carrier shall take all reasonable actions to confirm and preserve
reservations on the Operating Carrier for passengers scheduled to be traveling
on Marketing Carrier Tickets and, as applicable, endorse or otherwise modify
or reissue such tickets to permit use on the Operating Carrier. The Operating
Carrier shall accept passengers traveling on such tickets as if such
reservations had been booked through the Operating Carrier using ordinary
interline procedures.
13. INDEMNIFICATION
13.1 The Operating Carrier shall indemnify, defend, and hold harmless
the Marketing Carrier and its Affiliates and their respective directors,
officers, employees and agents (individually, a "MARKETING CARRIER INDEMNIFIED
PARTY") from and against any and all Damages arising out of, caused by, or
occurring in connection with (or alleged to arise out of, be caused by, or be
occurring in connection with):
(a) the death of or injury to persons, or delay or loss of or
damage to property (including aircraft, baggage or cargo) occurring while such
persons or property are under the control or in the custody of, or being
transported by, the Operating Carrier (including, for the avoidance of doubt,
Damages arising out of the death of or injury to Codeshared Passengers
traveling on Marketing Carrier Tickets that implement limits or conditions of
liability or jurisdictional rules with respect to passenger claims that differ
from those of the Operating Carrier), except to the extent caused by the
willful misconduct of a Marketing Carrier Indemnified Party;
(b) negligent acts or omissions of an Operating Carrier
Indemnified Party, which are in any way related to services contemplated by
this Agreement;
(c) the Operating Carrier's breach of any of its representations
or warranties set forth in Section 11 of this Agreement; or
(d) infringement of a third party's intellectual property or
similar rights by the Operating Carrier's logos, trademarks, service marks or
tradenames.
provided that in no case shall the Operating Carrier be obligated to provide
indemnification with respect to any Damages arising out of, caused by, or
occurring in connection with (or alleged to arise out of, be caused by, or be
occurring in connection with) the gross negligence or willful misconduct of a
Marketing Carrier Indemnified Party.
13.2 The Marketing Carrier shall indemnify, defend, and hold harmless
the Operating Carrier and its Affiliates and their respective directors,
officers, employees, and agents (individually, an "OPERATING CARRIER
INDEMNIFIED PARTY") from and against any and all
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Damages (except as provided in Section 13.2(c)) arising out of, caused by, or
occurring in connection with (or alleged to arise out of, be caused by, or
occurring in connection with):
(a) the death of or injury to persons, or delay or loss of or
damage to property (including aircraft, baggage or cargo) occurring while such
persons or property are under the control or in the custody of, or being
transported by, the Operating Carrier, to the extent caused by the gross
negligence or willful misconduct of a Marketing Carrier Indemnified Party;
(b) the death of or injury to persons, or delay or loss of or
damage to property (including aircraft, baggage or cargo) occurring while such
persons or property are under the control or in the custody of, or being
transported by, the Marketing Carrier, except to the extent caused by the
gross negligence or willful misconduct of an Operating Carrier Indemnified
Party;
(c) negligent acts or omissions of a Marketing Carrier
Indemnified Party that are in any way related to services contemplated under
this Agreement, except for Damages of the type referred to in Section 13.1(a)
(IN WHICH CASE THE OPERATING CARRIER MUST INDEMNIFY THE MARKETING CARRIER AND
OTHER MARKETING CARRIER INDEMNIFIED PARTIES NOTWITHSTANDING SUCH NEGLIGENT
(BUT NOT GROSSLY NEGLIGENT OR WILLFUL) ACTS OR OMISSIONS OF A MARKETING
CARRIER INDEMNIFIED PARTY);
(d) passenger claims based on the Marketing Carrier's failure to
properly issue and complete transportation documentation in accordance with
the provisions of the standard IATA or other applicable ticketing procedures,
including, without limitation, the failure to put a proper notice of the
limits of liability under the Warsaw Convention, as amended, on such
documentation (it being understood that in ticketing Codeshared Passengers,
the Marketing Carrier is entitled to apply the limits of liability provided
for in its own Conditions of Carriage); provided, however, that the Marketing
Carrier shall only be liable under this Section 13.2(c) for that portion of
Damages that are in excess of the Damages against which the Operating Carrier
would have been required to indemnify the Marketing Carrier under Section
13.1(a) if the Marketing Carrier had properly complied with all IATA ticketing
procedures;
(e) the Marketing Carrier's breach of its representations or
warranties set forth in Section 11 of this Agreement; or
(e) infringement of a third party's intellectual property or
similar rights by the Marketing Carrier's logos, trademarks, service marks or
tradenames.
13.3 A party (the "INDEMNIFIED PARTY") that believes it is entitled to
indemnification from the other party (the "INDEMNIFYING PARTY") pursuant to
the terms of this Agreement with respect to a third party claim shall provide
the Indemnifying Party with written notice (an "INDEMNIFICATION NOTICE") of
such claim (provided, however, that the failure to give such notice shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that such failure is materially prejudicial to the Indemnifying Party),
and the Indemnifying Party shall be entitled, at its own cost and expense and
by its own legal advisors, to control the defense of or to settle any such
third-party claim. The Indemnifying Party shall have the right to elect to
settle
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any such claim for monetary damages only, subject to the consent of the
Indemnified Party; provided, however, if the Indemnified Party fails to give
such consent to a settlement that has been agreed upon by the Indemnifying
Party and the claimant in question within ten (10) days of being requested to
do so, the Indemnified Party shall assume the defense of such claim or demand
and regardless of the outcome of such matter, the Indemnifying Party's
liability hereunder shall be limited to the amount of any such proposed
settlement. If the Indemnifying Party fails to take any action against the
third-party claim that is the subject of an Indemnification Notice within
thirty (30) days of receiving such Indemnification Notice, or otherwise
contests its obligation to indemnify the Indemnified Party in connection
therewith, the Indemnified Party may, upon providing prior written notice to,
but without the further consent of, the Indemnifying Party settle or defend
against such third-party claim for the account, and at the expense, of the
Indemnifying Party. Except as set forth in this Section 13.3, the Indemnified
Party shall not enter into any settlement or other compromise or consent to a
judgment with respect to a third party claim to which the Indemnifying Party
has an indemnity obligation without the prior written consent of the
Indemnifying Party.
13.4 Each Indemnified Party shall have the right, but not the duty, to
participate in the defense of any claim with attorneys of its own choosing and
at its own cost, without relieving the Indemnifying Party of any obligations
hereunder. In addition, even if the Indemnifying Party assumes the defense of
a claim, the Indemnified Party shall have the right to assume control of the
defense of any claim from the Indemnifying Party at any time, and to elect to
settle or defend against such claim; provided, however, the Indemnifying Party
shall have no indemnification obligations with respect to such claim except
for the costs and expenses of the Indemnified Party (other than attorneys'
fees incurred in participating in the defense of such claim) incurred prior to
the assumption of the defense of the claim by the Indemnified Party.
13.5 Each party further agrees to indemnify, defend and hold harmless
the other from and against any and all Taxes, or Assessments (as defined in
Section 15), as the case may be, levied upon or advanced by the Indemnified
Party, but that ultimately the Indemnifying Party would be responsible for
paying, which resulted from any transaction or activity contemplated by this
Agreement.
13.6 The rights and obligations of the parties under this Section 13
shall survive the termination or expiration of this Agreement.
14. INSURANCE
14.1 The Operating Carrier shall procure and maintain for the benefit
of the Marketing Carrier during the term of this Agreement with insurance
carriers of known financial responsibility, insurance of the type and in the
amounts listed in the Operating Carrier's Air Services Agreement. This
insurance must be primary without right of contribution from any insurance
carried by the Marketing Carrier to the extent of the indemnity specified in
Section 13.1, and shall (i) name the Marketing Carrier and the Marketing
Carrier Indemnified Parties as additional insureds to the extent of the
protections afforded the Marketing Carrier under the indemnity specified in
Section 13.1, (ii) contain a severability of interest clause and a breach of
warranty clause in favor of the Marketing Carrier, (iii) specifically insure
the Operating Carrier's
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indemnification obligations under this Agreement to the full extent of the
coverage provided by the Operating Carrier's policy or policies, and (iv)
contain a provision stating that the Operating Carrier's policy or policies
are automatically amended to comply with the laws and regulations of any
local, federal, or other governmental authority having jurisdiction over
aircraft operated by the Operating Carrier.
14.2 The Operating Carrier shall provide the Marketing Carrier with
certificates of insurance evidencing such coverage no less than thirty (5)
days prior to the commencement of the first Codeshared Flight, and thereafter
within five (5) Business Days of the date of any renewal of such coverage. The
certificates must indicate that the above coverage shall not be canceled or
materially altered without thirty (30) days' advance written notice to the
Marketing Carrier and that the Marketing Carrier shall be notified of any
expiration or renewal of such coverage. The notice period in respect of war
and allied perils coverage shall be seven (7) days or such lesser period as is
or may be available in accordance with policy conditions.
15. TAXES
15.1 Subject to Section 15.4, each party shall be responsible for any
net or gross income or franchise taxes (or taxes of a similar nature) on the
revenues or income or any measure thereof which is attributable to it in
connection with the sale of air transportation pursuant to this Agreement.
15.2 The party that acts as the Ticketing Carrier in respect of any
particular transaction shall collect, except as otherwise prohibited by law,
all Ticket Taxes relating to tickets sold or travel documents issued by it
with respect to air transport pursuant to this Agreement. The parties hereby
agree as follows:
(a) The Ticketing Carrier shall collect, report and remit to the
taxation authorities any non-interlineable Ticket Taxes levied in connection
with sales of the Codeshared Flights.
(b) The Ticketing Carrier shall collect any interlineable Ticket
Taxes levied in connection with the sales of the Codeshared Flights. If the
Ticketing Carrier is the Marketing Carrier or a third party, the Operating
Carrier shall report and issue a debit invoice to the Ticketing Carrier
through the IATA Clearing House for any interlineable Ticket Taxes levied in
connection with the sales of the Codeshared Flights. The Operating Carrier
shall remit to taxation authorities all such interlineable Ticket Taxes.
(c) The Operating Carrier may ▇▇▇▇ the Ticketing Carrier for any
Ticket Taxes due or payable on or measured by passenger enplanement and
payable or remittable by the Operating Carrier or the Marketing Carrier that
should have been collected at the time of ticket sale or travel document issue
by the Ticketing Carrier.
(d) If the Ticketing Carrier is a third party, the Marketing
Carrier shall use commercially reasonable efforts to cause such third party to
implement the foregoing provisions.
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15.3 Notwithstanding the provisions of Section 15.2, if the Ticketing
Carrier is prohibited by law from collecting certain Ticket Taxes in the
country where tickets are sold or where travel documents are issued, then the
Ticketing Carrier is relieved from collecting only such Ticket Taxes so
prohibited by law and shall notify the Operating Carrier within thirty (30)
days of the enactment of such laws which Ticket Taxes it is prohibited from
collecting and render reasonable assistance to the Operating Carrier so that
procedures can be implemented to collect such Ticket Taxes from the passenger.
15.4 Both parties acknowledge that the tax laws of the countries in
which they may operate in connection with the Codeshared Flights may require
withholding of Taxes on certain of the payments that either of the parties or
their agents (the "PAYER") may be required to pay to the other party (the
"PAYEE"), under this Agreement. It is agreed that payments to the Payee shall
be exclusive of such withholding, provided however, that the Payer shall
inform the Payee in writing with at least forty five (45) days' advance notice
of its intent to withhold the Taxes and the legal basis for such withholding.
The Payer shall inform the Payee:
(a) within fifteen (15) days of receipt by the Payer of any
directives that may be given to the Payer by such taxation authority; and
(b) within fifteen (15) days of payment by the Payer to the
relevant taxation authority the amounts withheld by Payer.
15.5 If either party receives notice from any taxation authority with
respect to any assessment or potential assessment or imposition of any Tax
(collectively, an "ASSESSMENT") relating to this Agreement, that the other
party may be responsible for paying, directly or indirectly, the party so
notified shall inform the other party in writing within ten (10) days of
receipt of such notice. If the party receiving such notice from a taxation
authority is or will be required to pay any Assessment for which the other
party is ultimately responsible, it shall be entitled to be indemnified
against such Assessment in accordance with Section 13.5. The Indemnifying
Party shall have the option to defend or contest such Assessment in accordance
with the procedures set forth in Section 13.
16. FORCE MAJEURE. Except with respect to the performance of payment,
confidentiality, and indemnity obligations, which shall be unconditional under
this Agreement, neither party shall be liable for delays in or failure to
perform under this Agreement to the extent that such delay or failure (an
"EXCUSABLE DELAY") (a) is caused by any act of God, war, natural disaster,
strike, lockout, labor dispute, work stoppage, fire, act of government or any
other cause, whether similar or dissimilar, beyond the control of that party;
and (b) is not the result of that party's lack of reasonable diligence.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1 This Agreement shall in all respects be governed by and construed
in accordance with the laws of the State of Missouri (without regard to its
conflict of laws principles) including all matters of construction, validity
and performance.
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17.2 Each party irrevocably submits to the nonexclusive jurisdiction of
the United States District Court for the Eastern District of Missouri for
legal proceedings arising out of this Agreement or any transactions
contemplated in this Agreement. Each party, to the fullest extent it may
effectively do so under substantive governing law applicable to this
Agreement, also irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any claim that it is not subject to the
jurisdiction of any such court and any objection that it may have as to venue
or inconvenient forum in respect of claims or actions brought in such court.
18. COVENANT TO COMPLY WITH ALL LAWS
18.1 In performing its obligations under this Agreement, each party
shall, at its own cost and expense, fully comply with, and have all
licenses under, all applicable federal, state, provincial and local laws,
rules and regulations of the United States, including rules and
regulations promulgated by the U.S. National Transportation Safety Board,
U.S. Department of Transportation, U.S. Federal Aviation Administration,
the U.S. Department of Defense and the U.S. Department of Justice.
18.2 If either party has notice that a provision of this Agreement is
contrary to any applicable laws or governmental regulations, that party shall
immediately notify the other party in writing, such notice to include a
description of the perceived violation of regulation and supporting written
materials that facilitate the other party's investigation of such perceived
violation.
19. PUBLICITY. Except as required by applicable law, neither party may
issue any written press release concerning this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed.
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20. CONFIDENTIALITY
20.1 Except as necessary to obtain any Government Approvals or as
otherwise provided below, each party shall, and shall ensure that its
directors, officers, employees, Affiliates, and professional advisors
(collectively, the "REPRESENTATIVES"), at all times, maintain strict
confidence and secrecy in respect of all Confidential Information of the other
party (including its Affiliates) received directly or indirectly as a result
of this Agreement. If a party (the "DISCLOSING PARTY") is requested to
disclose any Confidential Information of other party (the "AFFECTED PARTY")
under the terms of a subpoena or order issued by a court or governmental body,
it shall (a) notify the Affected Party immediately of the existence, terms,
and circumstances surrounding such request, (b) consult with the Affected
Party on the advisability of taking legally available steps to resist or
narrow such request, and (c) if any disclosure of Confidential Information is
required to prevent the Disclosing Party from being held in contempt or
subject to other legal penalty, furnish only such portion of the Confidential
Information as it is legally compelled to disclose and use commercially
reasonable efforts to obtain an order or other reliable assurance that
confidential treatment shall be accorded to the disclosed Confidential
Information. Each party agrees to transmit Confidential Information only to
such of its Representatives as required for the purpose of implementing and
administering this Agreement, and shall inform such Representatives of the
confidential nature of the Confidential Information and instruct such
Representatives to treat such Confidential Information in a manner consistent
with this Section 20.1.
Within ninety (90) days after the termination of this Agreement, each
party shall, either deliver to the other party or destroy all copies of the
other party's Confidential Information in its possession or the possession of
any of its representatives (including, without limitation, any reports,
memoranda or other materials prepared by such party or at its direction) and
purge all copies encoded or stored on magnetic or other electronic media or
processors, unless and only to the extent that the Confidential Information is
necessary for the continued administration and operation of such party's
programs or is reasonably necessary in connection with the resolution of any
dispute between the parties.
20.2 Each party acknowledges and agrees that in the event of any breach
of this Section 20, the Affected Party shall be irreparably and immediately
harmed and could not be made whole by monetary damages. Accordingly, it is
agreed that, in addition to any other remedy at law or in equity, the Affected
Party shall be entitled to an injunction or injunctions (without the posting
of any bond and without proof of actual damages) to prevent breaches or
threatened breaches of this Section 20 and/or to compel specific performance
of this Section 24.
20.3 The confidential obligations of the parties under this Section 20
shall survive the termination or expiration of this Agreement for a period of
five (5) years.
21. ASSIGNMENT. Neither party may assign or otherwise convey any of its
rights under this Agreement, or delegate or subcontract any of its duties
hereunder, without the prior written consent of the other party.
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22. SEVERABILITY. If any provision of this Agreement is or becomes illegal,
invalid or unenforceable under the law of any jurisdiction, such provision
shall be severed from this Agreement in the jurisdiction in question and shall
not affect the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or the enforceability
of such provision under the law of any other jurisdiction; UNLESS, in the
reasonable opinion of either party, any such severance affects the commercial
basis of this Agreement, in which case the party shall so inform the other
party and the parties shall negotiate in good faith to agree upon modification
of this Agreement so as to maintain the balance of the commercial interests of
the parties. If, however, such negotiations are not successfully concluded
within ninety (90) days from the date a party has informed the other that the
commercial basis has been affected, either party may terminate this Agreement
by giving at least thirty (30) days' prior written notice to the other party.
23. FURTHER ASSURANCES
23.1 Each party shall perform such further acts and execute and deliver
such further instruments and documents at such party's cost and expense as may
be required by applicable laws, rules or regulations or as may be reasonably
requested by the other to carry out and effectuate the purposes of this
Agreement.
23.2 If and to the extent the transactions or activities contemplated
by this Agreement require the cooperation or participation of an Affiliate of
a party hereto, such party shall cause such Affiliate to cooperate or
participate in such transaction or activity. Each party shall cause such
Affiliate to perform such acts and execute and deliver such further
instruments and documents as may reasonably be required by the other party to
provide for such cooperation and participation, including, without limitation,
execution of an addendum providing for such Affiliate to become a party to
this Agreement.
24. MISCELLANEOUS
24.1 Nothing in this agreement shall be construed to supersede any
provision of the party's respective Air Service Agreements.
24.2 The relationship of the parties hereunder shall be that of
independent contractors. Neither party is intended to have, and neither of
them shall represent to any other person that it has, any power, right or
authority to bind the other, or to assume, or create, any obligation or
responsibility, express or implied, on behalf of the other, except as
expressly required by this Agreement or as otherwise permitted in writing.
Nothing in this Agreement shall be construed to create between the parties
and/or the parties' Representatives any partnership, joint venture, employment
relationship, franchise or agency (except that the Operating Carrier shall
have supervisory control over all passengers during any Codeshared Flight,
including any employees, agent or contractors of the Marketing Carrier who are
on board any such flight).
24.3 All rights, remedies and obligations of the parties hereto shall
accrue and apply solely to the parties hereto and their permitted successors
and assigns; there is no intent to benefit any third parties, including the
creditors of either party.
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24.4 This Agreement may be executed and delivered by the parties in
separate counterparts, each of which when so executed and delivered shall be
an original, but all of which taken together shall constitute one and the same
instrument.
24.5 No failure to exercise and no delay in exercising, on the part of
any party, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof of
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law. The
failure of any party to insist upon a strict performance of any of the terms
or provisions of this Agreement, or to exercise any option, right or remedy
herein contained, shall not be construed as a waiver or as a relinquishment
for the future of such term, provision, option, right or remedy, but the same
shall continue and remain in full force and effect. No waiver by any party of
any term or provision of this Agreement shall be deemed to have been made
unless expressed in writing and signed by such party.
24.6 This Agreement is the product of negotiations between OA and Trans
States, and shall be construed as if jointly prepared and drafted by them, and
no provision hereof shall be construed for or against any party by reason of
ambiguity in language, rules of construction against the drafting party, or
similar doctrine.
24.7 NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, SPECIAL
OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS OR LOST
PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM ANY PERFORMANCE OR FAILURE TO
PERFORM UNDER THIS AGREEMENT, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF
THE POSSIBILITY THEREOF, AND EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIMS
AGAINST THE OTHER PARTY REGARDING SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT,
THE PARTIES AGREE THE FOREGOING SHALL NOT LIMIT A PARTY'S OBLIGATION TO
INDEMNIFY THE OTHER IN ACCORDANCE WITH SECTION 13 FOR DAMAGES ARISING OUT OF
OR RELATING TO A CLAIM, SUIT OR CAUSE OF ACTION BY A THIRD PARTY.
25. NOTICES. Unless otherwise expressly required in this Agreement, all
notices, reports, invoices and other communications required or permitted to
be given to or made upon a party to this Agreement shall be in writing, shall
be addressed as provided below and shall be considered as properly given and
received: (i) when delivered, if delivered in person (and a signed
acknowledgment of receipt is obtained); (ii) three (3) Business Days after
dispatch, if dispatched by a recognized express delivery service that provides
signed acknowledgments of receipt; (iii) seven (7) Business Days after deposit
in the applicable postal service delivery system; or (iv) if transmitted by
facsimile, upon completion of transmission and upon confirmation by the sender
(by a telephone call to a representative of the recipient or by machine
confirmation) that the transmission was received. For the purposes of notice,
the addresses of the parties shall be as set forth below; provided, however,
that either party shall have the right to change its address for
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notice to any other location by giving at least three (3) Business Days prior
written notice to the other party in the manner set forth above.
If to Trans States: Trans States Airlines, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Operating Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to OA: Chautauqua Airlines, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President & CEO
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to Wexford Capital LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed this Agreement as of the date first indicated above.
CHAUTAQUA AIRLINES, INC. TRANS STATES AIRLINES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President & CEO Title: Chief Operating Officer
ATTACHMENTS:
Annex A - Definitions
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ANNEX A
DEFINITIONS
"AFFILIATE" means, with respect to any person or entity, any other person or
entity directly or indirectly controlling, controlled by, or under common
control with, such person or entity. For purposes of this definition, "CONTROL"
(including "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting
securities, by contract or otherwise.
"APPLICABLE LAW" means all applicable laws of any jurisdiction including
securities laws, tax laws, tariff and trade laws, ordinances, judgments,
decrees, injunctions, writs, and orders or like actions of any Competent
Authority and the rules, regulations, orders or like actions of any Competent
Authority and the interpretations, licenses, and permits of any Competent
Authority.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day in which
banking institutions in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇, are required by
law, regulation or executive order to be closed.
"CODE" means the two (2) character identifier assigned to a carrier by IATA for
the purpose of exchanging interline carrier messages in accordance with AIRIMPS
procedures.
"CODESHARED FLIGHT" has the meaning set forth in Section 2.1.
"CODESHARED PASSENGER" means a passenger traveling on a Codeshared Flight.
"COMPETENT AUTHORITIES" means any national, federal, state, county, local or
municipal government body, bureau, commission, board, board of arbitration,
instrumentality, authority, agency, court, department, inspectorate, minister,
ministry, official or public or statutory person (whether autonomous or not)
having jurisdiction over this Agreement or either party.
"CONDITIONS OF CARRIAGE" means those conditions of contract tariffs and rules of
carriage of a party that govern the transport of passengers traveling on tickets
showing such party's Code in the carrier code box of the flight coupon.
"CONFIDENTIAL INFORMATION" means (a) all confidential or proprietary information
of a party, including, without limitation, trade secrets, information concerning
past, present and future research, development, business activities and affairs,
finances, properties, methods of operation, processes and systems, customer
lists, customer information (such as passenger name record or "PNR" data) and
computer procedures and access codes; and (b) the terms and conditions of this
Agreement and any reports, invoices or other communications between the parties
given in connection with the negotiation or performance of this Agreement; and
(c) excludes (i) information already in a party's possession prior to its
disclosure by the other party; (ii) information obtained from a third person or
entity that is not prohibited from transmitting such information to the
receiving party as a result of a contractual, legal or fiduciary obligation to
the
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party whose information is being disclosed; (iii) information that is or
becomes generally available to the public, other than as a result of
disclosure by a party in violation of this Agreement; or (iv) information that
has been or is independently acquired or developed by a party, or its
Affiliate, without violating any of its obligations under this Agreement.
"CRS" means a computerized system owned or operated by any entity, including
either party to this Agreement, that contains information about commercial
airline schedules, fares, cargo rates, passenger and cargo tariff rules and
flight availability that is made available to travel agents, cargo agents and
other non-airline entities to facilitate their ability to make reservations and
issue tickets and air waybills.
"DAMAGES" means all claims, suits, causes of action, penalties, liabilities,
judgments, fines, losses and expenses of any nature or kind whatsoever
(including, for the avoidance of doubt, internal expenses of the indemnified
party, such as employee salaries and the costs of cooperating in the
investigation, preparation or defense of claims) under the laws of any
jurisdiction (whether arising in tort, contract, under the Warsaw Convention and
related instrument, or otherwise), including reasonable costs and expenses of
investigating, preparing or defending any claim, suit, action or proceeding
(including post judgment and appellate proceedings or proceedings that are
incidental to the successful establishment of a right of indemnification), such
as reasonable attorneys' fees and fees for expert witnesses, consultants and
litigation support services.
"FEEDER AIR SERVICE FLIGHT" shall have the meaning set forth in the respective
party's Air Services Agreement.
"GOVERNMENTAL APPROVALS" means any authorizations, licenses, certificates,
exemptions, designations, or other approvals of Competent Authorities that are
reasonably required (in the opinion of either party) for the operation of the
Codeshared Flights.
"IATA" means the International Air Transport Association.
"IATA CLEARING HOUSE" means the clearing house established by IATA to administer
and implement revenue settlement by reference to the Revenue Accounting Manual
published by IATA.
"INDEMNIFICATION NOTICE" has the meaning assigned to such term in Section 13.3.
"MARKETING CARRIER FLIGHT COUPON" means a flight coupon of a ticket issued by
the Marketing Carrier, Operating Carrier or a third party for travel on a
Codeshared Flight showing the Marketing Carrier's Code in the carrier code box
of the flight coupon.
"MARKETING CARRIER INDEMNIFIED PARTY" has the meaning assigned to such term in
Section 13.1.
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"MARKETING CARRIER TICKET" means a ticket issued by the Marketing Carrier,
Operating Carrier or a third party that contains at least one Marketing Carrier
Flight Coupon.
"MARKETING FLIGHT(S)" means a Codeshared Flight when displayed, sold, or
referred to as a flight of the Marketing Carrier rather than a flight of the
Operating Carrier, such as when using the Marketing Carrier's name, Designator
Code and/or flight number.
"OPERATING CARRIER INDEMNIFIED PARTY" has the meaning assigned to such term in
Section 13.2.
"PAYEE" AND "PAYER" have the meanings assigned to such terms in Section 15.4.
"RESERVATIONS SYSTEM" means the internal computerized airline passenger or cargo
reservations system used by the personnel of an airline that contains
information about flight schedules, fares, cargo rates, passenger and cargo
tariff rules and seat availability of that airline and other carriers, and
provides the ability to make reservations and issue tickets or air waybills.
"TICKETING CARRIER" means a carrier whose traffic documents are used to issue a
ticket.
"TICKET TAXES" means any transactional taxes or passenger facility charges,
including, without limitation, sales taxes, use taxes, stamp taxes, excise
taxes, value added taxes, gross receipts taxes, departure taxes, surcharges and
travel taxes, and all related charges, fees, licenses or assessments (and any
interest or penalty thereon) imposed on passengers (or which air carriers or
their agents are required to collect from passengers) by any authority in any
country, or political subdivision thereof or public authority operating therein
(including, without limitation any national, federal, state, provincial,
territorial, local, municipal, port or airport authority) or which are levied
upon passengers by operation of applicable law or industry standard. Ticket
Taxes together with the taxes referred to in Section 15.1 are collectively
referred to as "TAXES".
"$" or "US$" or "DOLLARS" means lawful currency of the United States of
America.
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