AMENDMENT NUMBER ONE TO DELTA CONNECTION AGREEMENT
Exhibit
10.2
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Certain
portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
The omitted materials have been filed separately with the Securities and
Exchange Commission.
AMENDMENT
NUMBER ONE TO
This
Amendment Number One (this “First
Amendment”),
dated
the 12th
day of
March, 2007, to the Delta Connection Agreement dated and effective January
13,
2005 (as previously amended from time to time, the “Agreement”),
is
among Delta Air Lines, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(“Delta”),
Shuttle America Corp. (as assignee of Republic Airline, Inc.) (“Shuttle
America”
or
“Operator”),
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Republic Airways Holdings, Inc.
(“Republic”),
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS,
Delta, Shuttle America and Republic are parties to the Agreement;
WHEREAS,
the Agreement currently provides for the Operator to operate sixteen
(16) Embraer ERJ 170 aircraft as a Delta Connection Carrier;
and
WHEREAS,
the parties desire to amend the Agreement.
NOW,
THEREFORE, for and in consideration of the mutual undertakings set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Delta, Operator and Republic, intending to be legally
bound, hereby agree as follows:
| 1. |
Defined
Terms.
All capitalized terms used, but not defined, herein shall have the
meaning
ascribed to such terms in the
Agreement.
|
| 2. |
CPI
Limitation.
For calendar year 2007 only, for purposes of establishing Base Rate
Costs
pursuant to Article 3G of the Agreement, notwithstanding any provisions
of
the Agreement to the contrary, CPI shall not in any event exceed
[*].
|
| 3. |
Rate
Reduction.
Commencing on the later of (x) May 1, 2007 and (y) the date on which
the
conditions set forth in Section 4 below are either satisfied or waived
(the “Effective
Date”),
the aggregate Per Block Hour reimbursement rate for each Aircraft
shall be
reduced by [*](after giving effect to escalation pursuant to Article
3G
for calendar year 2007) for the remaining term of the Agreement.
The
parties agree that, upon and following satisfaction of the conditions
provided by Section 4, as of the Effective Date, the Per Block Hour
reimbursement rate for each Aircraft for the remainder of calendar
year
2007 shall be [*].
For the avoidance of doubt, such reduction in the Per Block Hour
reimbursement rate shall not be effective with respect to the utilization
of the Aircraft prior to the Effective
Date.
|
| 4. |
Conditions
to Effectiveness.
The effectiveness of this Amendment shall be subject to and conditioned
upon the United States Bankruptcy Court for the Southern District
of New
York, which is administering Delta’s case under Chapter 11 Case No.
05-17923 (ASH), (the “Bankruptcy
Court”)
having entered an order (collectively, the “Approval
Order”)
(A) approving this First Amendment, Amendment Number Six (the
“Sixth Amendment”)
dated of even date herewith to the Delta Connection Agreement dated
as of
June 7, 2002 among Delta, Chautauqua Airlines, Inc. (“Chautauqua”)
and Republic (the “Chautauqua
Delta Connection Agreement”)
and the Letter Agreement dated of even date herewith among Chautauqua,
Republic, Shuttle America and Delta (the “Letter
Agreement”),
(B) providing for Delta’s assumption of the Agreement (as amended by this
First Amendment) and the Chautauqua Delta Connection Agreement (as
amended
by the Sixth Amendment) pursuant to Section 365 of the Bankruptcy
Code,
and (C) authorizing Delta to perform its obligations and exercise
its
rights under this First Amendment, the Sixth Amendment and the Letter
Agreement to execute and deliver the other instruments and documents
contemplated thereby and to consummate the transactions contemplated
thereby. Such effectiveness shall also be conditional on any motion
for
rehearing or reconsideration of the Approval Order having been denied,
and
if the Approval Order shall have been appealed, either (i) no stay
of the
Approval Order shall be in effect or (ii) if such a stay has been
granted
by a court of competent jurisdiction, then (x) the stay shall have
been
dissolved or (y) a final order of a court having jurisdiction to
hear such
appeal shall have affirmed the Approval Order and the time allowed
to
appeal from such affirmance or to seek review or rehearing thereof
shall
have expired and no further hearing, appeal or petition for certiorari
can
be taken or granted. Delta shall use its commercially reasonable
efforts
to obtain an Approval Order on a prompt basis after the parties have
executed this First Amendment, the Sixth Amendment and the Letter
Agreement, and in connection therewith will file an appropriate motion
with the Bankruptcy Court by no later than March 15,
2007.
|
| 5. |
Miscellaneous.
|
| A. |
This
Amendment constitutes the entire understanding of the parties with
respect
to the subject matter hereof, and any other prior or contemporaneous
agreements, whether written or oral, are expressly superseded
hereby.
|
| B. |
This
First Amendment may be executed in any number of counterparts, each
of
which shall be deemed an original and all of which, taken together,
shall
constitute one and the same
instrument.
|
| C. |
Except
as specifically stated herein, all other terms and conditions of
the
Agreement shall remain in full force and
effect.
|
[Remainder
of page intentionally left blank]
__________
*
Confidential
IN
WITNESS WHEREOF, the parties have executed this First Amendment by their
undersigned duly authorized representatives:
| Republic Airways Holdings, Inc. | Delta Air Lines, Inc. | ||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
|
|
|
||
| Name:
▇▇▇▇▇
▇▇▇▇▇▇▇ Title: Chairman and CEO |
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Title: Executive VP & CFO |
| Shuttle America Corp. | |||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
|
|||
| Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: President and CEO |