EXHIBIT 10.18
CODE SHARE AGREEMENT
between
AirTran Airways, Inc.
and
ValuJet Airlines, Inc.
This Agreement ("Agreement"), made and entered into this 23rd day of September,
1997, by and between AirTran Airways, Inc. ("AirTran"), having its principal
mailing address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and ValuJet
Airlines, Inc. dba AirTran Airlines, ("ValuJet") having it principal mailing
address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and referred to
collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, AirTran holds a Certificate of Public Convenience and Necessity
issued by the U.S. Department of Transportation ("DOT") authorizing AirTran to
engage in air transportation of persons, property and mail, and is currently
providing scheduled interstate air service and ValuJet also holds a Certificate
of Public Convenience and Necessity issued by the DOT authorizing ValuJet to
engage in air transportation of persons, property and mail, and is currently
providing scheduled interstate air service; and
WHEREAS, in anticipation of a merger of the carriers, the parties desire to
provide seamless, affordable air service to as many member of the traveling
public as possible who do not currently have such opportunity, the parties
commit to jointly coordinate certain fares, schedules and advertising; and
WHEREAS, Pursuant to the License Agreement ("License Agreement"), attached
hereto as Exhibit, A, AirTran has provided ValuJet with a non-exclusive license
to use AirTran's Marks, Name and Designator Code ( as are defined in the License
Agreement), in connection with its scheduled air transportation services; and.
WHEREAS, the parties desire to enter into an agreement to operate under
AirTran's Designator Code ("Code Share").
NOW, THEREFORE, in consideration of the foregoing promises, mutual
covenants and obligations hereinafter contained and subject to securing any and
all necessary corporate, Federal, State and local regulatory approvals, and
where necessary, airport consents or approvals, the parties agree as follows:
1. DEFINITIONS
. "Effective Date" means the day and year set forth in the initial paragraph
of this agreement.
. "Implementation Date" means that certain day and year mutually agreed to
by the Parties, upon which ValuJet shall commence operations as an AirTran
code share connection carrier under the terms, conditions and provisions of
this Agreement.
. "Joint Location" means any airport where ValuJet and AirTran operate
concurrent
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services. The Market and Airports served by the Parties are listed on
Exhibit B, attached hereto.
. "Open Skies" means the reservation software and system utilized by each
Party.
. "Settlement" means the weekly process of reconciling inter-company
accounts to determine the net amount due to a Party in payment for the
Reservation Services for the preceding week, as is more fully described in
Paragraph 3D.
. "Settlement Amount"means the amount due and payable to a Party from the
weekly Settlement. The Settlement Amount will be due and payable within
fourteen (14) days of the Settlement, as is more fully described in
Paragraph 3D.
. "Standard of Service" means that level and quality of service currently
provided by the Parties to their respective passengers.
. "Reservation Services" means those activities set forth in Paragraph 3A.
2. SCOPE, TERM AND RENEWAL
A. The scope of the Agreement pertains to the entire operations of ValuJet
and AirTran, except for AirTran's Code Share arrangement with Comair,
Inc., and may be modified from time to time by written agreement of the
parties.
B. This Agreement shall become effective on the Effective Date, and
continue for one (1) year unless and until terminated at an earlier date
pursuant to one or more of the provisions of this Agreement.
C. The Parties agree to use their best efforts to fairly calculate the
Settlement and the Settlement amount, and neither party intends to
profit unnecessarily at the expense of the other.
D. THE PARTIES AGREE THAT THIS IS NOT A FRANCHISE AGREEMENT.
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3. SUPPORT SERVICES
A. Reservation Services
In conjunction with the Code Share, the Parties will perform certain
Reservation Services on each other's behalf, including but not limited
to booking reservations, processing credit card transactions,
collecting credit card payments and remitting various fees,
commissions and charges related to the reservations. In order to
monitor the cash flow related to the reservation services, the Parties
will maintain inter-company accounts to reflect Reservation Services
performed on behalf of each other. On a weekly basis, the Parties
will perform a Settlement by reconciling inter-company accounts to
determine the net amount due to a Party in payment for the Reservation
Services, a process which is more fully described in ▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇.
B. Operations
(1) The Parties shall be solely and independently responsible for, and
shall have no obligations or duties with respect to the dispatch of
the flights of the other Party. For the purposes of this Agreement,
the term flight dispatch shall include, but shall not be limited to,
all planning of flight itineraries and routings, fueling and flight
release.
(2) The Parties hereby represent and warrant, that all air
transportation services performed by each of them Pursuant to this
Agreement or otherwise shall be conducted in full compliance with
all applicable statutes, orders rules and regulations, whether now
in effect or hereafter promulgated, of all governmental agencies
having jurisdiction over the operations of each of the Parties,
including, but not limited to, the Federal Aviation Administration
("FAA") and the DOT.
(3) The Parties shall have sole responsibility for each and every
aspect of their respective operations, including without limitation
scheduling, pricing, planning of flight itineraries and routing,
reservations, dispatch, yield management, maintenance and flight
operations.
(4) The Parties shall perform the services in this Agreement in a
timely, expert and quality manner, in accordance with the standard
in the industry.
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C. Tariffs and Schedule Publication
(1) General - ValuJet and AirTran shall comply with governmental
regulations for public disclosure of it tariffs.
(2) Timetables - The parties shall develop a joint use timetable. The
cost of such timetables shall be pro-rated based upon the relative
number of passengers carried by the Parties.
D. Settlement
As stated, on a weekly basis the Parties will perform a Settlement to
determine the Settlement Amount due to a Party. ValuJet will maintain an
account entitled "Due to AirTran" which will reflect Reservation Services
performed by ValuJet on AirTran's behalf. AirTran will maintain a
corresponding account to reflect Reservation Services performed by AirTran
on ValuJet's behalf. These inter-company liability accounts will be
reconciled by the Parties on a weekly basis, and the reconciled balances
will then be compared to determine which Party has the largest outstanding
liability. The balances in the inter-company liability accounts will then
be off set against one another, and the excess will be the Settlement
Amount due to a Party. Thus, as an example, if after the weekly
reconciliation ValuJet has an outstanding liability due to AirTran of
$40,000, and AirTran has an outstanding liability due to ValuJet of
$30,000, ValuJet will be obligated to pay the net amount of $10,000 to
AirTran. Settlement Amounts will be paid by wire transfer within fourteen
(14) days of the Settlement. Additional details related to the Settlement
and the calculation of the Settlement Amount are described on Exhibit C,
attached hereto.
The Parties acknowledge that they may experience delays in cash flow
receipts from First Bank in the processing of ARC sales as well as some
direct credit card sales. The Parties agree to jointly monitor expected
cash flow from ARC sales and direct credit card sales to determine if it
will be necessary to extend the period for the payment of the Settlement
Amount beyond fourteen days. The Parties acknowledge and agree that any
decision to extend the period for payment of the Settlement Amount will not
serve as a waiver of the any liabilities related to the Settlement.
As a part of the Settlement, either Party may conduct on-site audits of
Open Skies reports, tickets, exchange orders, refunds and other records
relating to sales and refund activity pertaining to the Code Share, during
normal working hours, or at other times by mutual agreement. The scope and
reconciliation during any such audit will be limited to the preceding
ninety (90) days.
AirTran Airways will conduct an audit of each month's coupons from ARC
processed
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sales and will determine the total amount of revenue from flown passengers
for each Settlement period. The audited revenue amount will then be
compared to the Settlement Amounts and any required adjustments to the next
Settlement Amount payment will be made. In this regard, ValuJet will
endeavor to send all ticket coupons to AirTran's offices in Orlando within
three (3) business days of flight.
Each Party agrees to be responsible for the remittance of taxes, fees and
passenger facility charges for the Reservation Services performed on behalf
of the other party.
E. Advertising and Promotions
(1) Each Party will be responsible for the cost of its own advertising
and promotions. Both Parties agree to coordinate activities in
common cities to avoid duplication and maintain a common theme.
(2) AirTran shall not use any ValuJet trade name or service ▇▇▇▇
without ValuJet's express written consent.
(3) ValuJet will be solely responsible for advertising expenses
related to the launch of the Code Share.
(4) ValuJet agrees to provide advance copies of advertising,
promotions, press releases and collateral documents for AirTran's
review and discussion.
F. Assistance
The Parties shall furnish each other with all information as they may
require to carry out the services and functions contemplated by the
Agreement.
4. VALUJET'S USE OF AIRTRAN'S DESIGNATOR CODE
A. General
In conjunction with the License Agreement, all ValuJet reservations
will be under AirTran's Designator Code. As such, all of ValuJet's
flights shall be displayed in any system used by AirTran, the Official
Airline Guide ("OAG"), all other computerized reservations systems,
and all other publication in which AirTran publishes its entire
domestic flight schedule, using the AirTran Designator Code, "FL", and
flight numbers within a range of flight numbers provided by AirTran.
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B. Operation of Additional Services
Notwithstanding anything to the contrary contained in this Agreement,
AirTran shall be entitled to operate additional services outside the
scope of this Agreement and under it own name, or any other name.
5. ADDITIONAL UNDERTAKINGS
A. Each Party shall grant the employees of the other Party travel
privileges in accordance with the existing Pass Agreements as modified
from time to time by either of the Parties in accordance with their
standard policies.
B. A soon as reasonably practicable after the Implementation Date, ValuJet
shall display signage advertising its operations as AirTran in all
ValuJet locations (at its cost and expense) and in Joint Locations.
C. AirTran shall file schedules and fares for the Code Share service.
However, each Party shall be solely responsible for setting their own
fares.
6. INSURANCE
During the term of the Agreement and any renewal thereof, each Party agrees
to procure and maintain in full force and effect, at its own expense, a
policy or policies of insurance with an insurance company or companies
satisfactory to the other party which provides at a minimum, the following
insurance:
A. Comprehensive Airline Liability Insurance, including but not limited to
Aircraft Liability, Passenger Liability, contractual liability,
specifically insuring the liabilities assumed under this Agreement,
Comprehensive General Liability Insurance and Cargo and Baggage
Liability Insurance, with combined single limits for each and every loss
and each aircraft of not less than U.S. $350,000,000. Any policies of
insurance carried in accordance with this Agreement shall also contain
or be endorsed to contain those provisions acceptable to the Parties.
B. On or before the Implementation Date of this Agreement, and not less
that thirty (30) days before any cancellation or renewal of any
insurance required to be maintained under this Agreement, each Party
shall furnish the other Party with certificates of insurance as evidence
of compliance with the foregoing requirements.
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C. In the event that either Party shall fail to maintain insurance as
herein provided, the other Party may at its option provide such
insurance and, in such event, the other party shall, upon demand,
reimburse the other Party for the cost thereof.
7. LIABILITY AND INDEMNIFICATION
A. Each Party hereto assumes full responsibility for its employer's
liability and Workers Compensation liability to it own officers,
directors, employees or agents on account of injury, or death resulting
from or sustained in the performance of their respective service under
this Agreement. Each Party, with respect to its own employees, accepts
full and exclusive liability for the payment of worker's compensation
and 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, 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 such payments and to make and file all reports and returns, and to
do everything to comply with the laws imposing such taxes, contributions
or other payments.
B. ValuJet hereby assumes liability for and agrees to indemnify, release,
defend, protect save and hold AirTran, its officers, directors, agents,
and employees harmless from and against any and all liabilities,
damages, expenses, losses, claims, demands, suits, fines, or judgements,
including but not limited to, attorneys' and witnesses' fees, costs and
expenses incident thereto, which may be suffered by, accrue against, be
charged to or be recovered from AirTran, its officers, directors,
employees or agents, by reason of any injuries to or deaths of persons
or the loss of, damage to, or destruction of property, including the
loss of use thereof, arising out of, in connection with, in any way
related to any act, error, omission, operation, performance or failure
or performance of ValuJet or its officers, directors, employees or
agents, or any combination thereof, which is in any way related to the
services contemplated by or provided by ValuJet pursuant to this
Agreement. AirTran shall give ValuJet prompt and timely notice of any
claim made or suit instituted against AirTran which in any way results
in indemnification hereunder, and ValuJet shall have the right to
compromise or participate in the defense of same to the extent of its
own interest.
C. AirTran hereby assumes liability for and agrees to indemnify, release,
defend, protect save and hold ValuJet, its officers, directors, agents,
and employees
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harmless from and against any and all liabilities, damages, expenses,
losses, claims, demands, suits, fines, or judgements, including but not
limited to, attorneys' and witnesses' fees, costs and expenses incident
thereto, which may be suffered by, accrue against, be charged to or be
recovered from ValuJet, its officers, directors, employees or agents, by
reason of any injuries to or deaths of persons or the loss of, damage
to, or destruction of property, including the loss of use thereof,
arising out of, in connection with, in any way related to any act,
error, omission, operation, performance or failure or performance of
AirTran or its officers, directors, employees or agents, or any
combination thereof, which is in any way related to the services of
AirTran contemplated by or provided pursuant to their Agreement. ValuJet
shall give AirTran prompt and timely notice of any claim made or suit
instituted against AirTran which in any way results in indemnification
hereunder, and AirTran shall have the right to compromise or participate
in the defense of same to the extent of its own interest.
D. As used in this Agreement, all references to AirTran or ValuJet include
the Parties' parent companies, any subsidiary of affiliate of the
Parties or its parent company, and their respective employees, officers,
directors and agents.
8. CHARGES
For and in consideration of the Reservation Services performed by the
Parties, each will be entitled to receive a Reservation Fee (Reservation
Fee"), to be calculated as described on Exhibit B, attached hereto.
Additionally, in consideration of revenue accounting services for travel
agencies performed by AirTran on behalf of ValuJet, AirTran will be
entitled to receive a Revenue Accounting Fee ("Revenue Accounting Fee"), to
be calculated as described on Exhibit C, attached hereto.
9. REPORTS
The Parties will utilize reports generated through Open Skies and ticket
lift data at reasonable times to the extent necessary to verify the
accuracy and legitimacy of such data and to the extent necessary to
supplement incomplete or missing data required under this Agreement.
10. INDEPENDENT CONTRACTORS AND WAIVER OF CONTROL
A. The employees, agents, and independent contractors of ValuJet engaged in
performing any of the services ValuJet is to perform pursuant to this
Agreement are employees, agents, and independent contractors of ValuJet
for all purposes,
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and under no circumstances shall they be deemed to be employees, agents
or independent contractors of AirTran. In its performance under this
Agreement, ValuJet shall act, for all purposes, as an independent
contractor and not as an agent for AirTran. AirTran shall have no
supervisory power or control over any employees, agents or independent
contractors engaged by ValuJet in connection with its performance
hereunder, and all complaints or requested changes in procedures made by
AirTran shall, in all events, be transmitted by AirTran to ValuJet's
designated representative. Nothing contained in this Agreement is
intended to limit or condition ValuJet's control over its operations or
the conduct of its business as an air carrier, and ValuJet and its
principals assume all risks of financial losses which may result from
the operation of the air services to be provided by ValuJet hereunder.
B. The employees, agents, and independent contractors of AirTran engaged in
performing any of the service AirTran is to perform pursuant to this
Agreement are employees, agents, and independent contractors of AirTran
for all purposes and under no circumstances shall be deemed to be
employees, agents or independent contractors of ValuJet. ValuJet shall
have no supervision or control over any such AirTran employees, agents,
or independent contractors and any complaint or requested change in
procedure made by ValuJet shall be transmitted by ValuJet to AirTran's
designated representative. In its performance under this Agreement,
AirTran shall act, for all purposes, as an independent contractor and
not as an agent for ValuJet.
C. (1) Nothing in this Agreement authorizes AirTran to make any
contract, agreement, warranty, or representation of ValuJet's
behalf, or to incur any debt or obligation in ValuJet's name
("unauthorized obligation") and AirTran hereby agrees to defend,
indemnify, save, release and hold ValuJet, its officers, directors,
employees and agents harmless from any all liabilities, claims,
judgements and obligations which arise as a result of or in
connection with, or by reason on any such unauthorized obligation
made by AirTran, its officers, directors, employees, agents or
independent contractors in the conduct of AirTran operations.
(2) Nothing in this Agreement authorizes ValuJet to make any contract,
agreement, warranty, or representation of AirTran's behalf, or to
incur any debt or obligation in AirTran's name ("unauthorized
obligation") and ValuJet hereby agrees to defend, indemnify, save,
release and hold AirTran, its officers, directors, employees and
agents harmless from any all liabilities, claims, judgements and
obligations which arise as a result of or in connection with, or by
reason on any such unauthorized obligation made by ValuJet, its
officers, directors, employees, agents or independent contractors in
the conduct of ValuJet's operations.
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D. The fact that all of ValuJet's operations are conducted under AirTran's
Marks and listed under the "FL" designator code shall not affect their
status as flight operated by ValuJet for purpose of this agreement or
any other agreement between the Parties, and the Parties agree to advise
all third parties, including passengers, of this fact where such notice
is required.
11. TERMINATION
A. Notwithstanding any other provision of this Agreement, except in those
circumstances described in Article 12 of this Agreement, either of the
Parties may terminate the Agreement upon not less than 180 days from
----
receipt of a written notice to terminate by the non-terminating party.
However, on a best efforts basis, the passengers booked prior to the
notice of termination will be carried by the Parties.
12. DEFAULT AND REMEDIES
A. If either party shall:
1. Fail to pay any amounts due hereunder, and such failure shall
continue for a period of ten days following written notice.
2. Either Party shall fail to perform or default in any provision of
this Agreement, or any other contract or agreement between the
Parties, and such default shall continue for a period of more
than thirty (30) days after written notice is received;
3. Either Party fails to provide the insurance required pursuant to
Section 8 hereof,
4. Either Party becomes insolvent or seeks protection, voluntarily
or involuntarily, under any bankruptcy, reorganization,
receivership or similar statute or law applicable to such party.
B. Upon the occurrence of the foregoing event, the other party may:
1. Declare all amounts owed to such party hereunder to be immediately
due and payable;
2. Cease performance of all services required to be performed
hereunder;
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3. Terminate and cancel this agreement on the effective date set
forth in any such notice of termination or cancellation.
C. All of the rights and remedies of the parties hereto shall be
cumulative and in addition to all other rights and remedies available
to the parties at law or in equity, and no right or remedy hereunder
is intended or shall be deemed to be exclusive.
13. ASSIGNMENT
No party shall assign his or its rights and/or obligations hereunder
without the prior written consent of each other party to this Agreement.
14. CHANGE OF LAW
Notwithstanding anything herein to the contrary, in the event there is any
change in the statutes governing the economic regulations or orders of
interpretation of any such rule, regulation or orders of interpretation of
any such rule, regulation or order of the DOT or other department of the
government having jurisdiction over air transportation, which change or
changes materially affect the rights or obligations of either party hereto
under the terms of this Agreement, then the parties hereto shall consult,
not later than 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 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
terminated in light of the occurrences described above, and such failure to
reach agreement shall continue for a period or thirty (30) days following
the commencement of the consultations provided for by this Article 18, then
this Agreement may be terminated by either party upon providing the other
party thirty (30) days prior written notice of such termination. Any such
termination shall be without additional obligation or liability to both
parties except that such termination shall not relieve either party of any
debt or obligation, monetary or otherwise, accruing hereunder prior to the
effective date or termination.
15. TAXES, PERMITS, ETC.
The parties shall comply with all international, U.S. federal, U.S. state,
and U.S. local laws, rules and regulations, shall timely obtain and
maintain any and all permits, certificates, or licenses necessary for the
full and proper conduct of its operations, and shall pay all fees assessed
from airport use including by not limited to, landing fees, user airport
fees, and prorated airport facility fees.
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16. NOTICES
Any and all notices, approvals, requests or demands required to be given in
writing by the parties hereto shall be sufficient if sent by certified
mail, postage prepaid, and addressed to:
Office of the President
AirTran Airways
Main Hangar Base - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to:
ValuJet Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other addresses in the continental United States as the parties
may specify in writing. Notices may be sent by telex, telegram or facsimile
to the above addresses and shall be deemed to be received eight (8) hours
after the time of their proper transmission.
17. APPROVALS AND WAIVERS
A. Whenever this Agreement requires the prior approval or consent, the
requesting party shall make a timely request to the other Party and
the consent shall be obtained in writing.
B. Neither party to this Agreement assumes any liability or obligation to
the other party by providing any waiver, approval, consent or
suggestion to the other party in connection with this Agreement or by
reason of any neglect, delay or denial of any request therefor.
C. No failure by either party to exercise any power reserved to it by
this Agreement, or to insist upon strict compliance by the other party
with any obligation or condition hereunder, and no custom or practice
of the parties at variance with the terms hereof, shall constitute a
waiver of such party's right to demand exact compliance with any of
the terms herein. Waiver by such party of any particular default by
the other party shall not affect or impair such party's rights with
respect to any subsequent default of the same, similar or different
nature, nor shall any delay, forbearance or emission of such party to
exercise any power or right arising out of any breach or default by
the other party of any of the terms, provisions or
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covenants hereof, affect or impair such party's right to exercise the
same nor shall such constitute a waiver by such party of any right
hereunder, or the right to declare any subsequent breach or default
and to terminate this license prior to the expiration of its term.
Subsequent acceptance by such party of any payments due to it
hereunder shall not be deemed to be a waiver by such party of any
preceding breach by the other party of any terms, covenants of this
Agreement.
18. GOVERNING LAW
This Agreement and any dispute arising thereunder, including any act in
tort, shall be governed by and construed and enforced in accordance with
the internal laws of the State of Florida. The parties agree that disputes
arising under this Agreement shall first be subject to resolution by non-
binding mediation, the mediator being mutually agreed to by the parties.
19. CUMULATIVE REMEDIES
No right or remedy conferred upon or reserved to ValuJet or AirTran by this
Agreement is intended to be nor shall be deemed, exclusive of any other
right or remedy herein or by law or equity provided or permitted, but each
shall be cumulative of every other right or remedy.
20. FORCE MAJEURE
A. Except for any payments due hereunder, neither party shall be liable
for delays or failure in performance hereunder caused by acts of God,
acts of terrorism or hostilities, war, strike, labor dispute, work
stoppage, fire, act of government court order, or any other cause,
whether similar or dissimilar, beyond the control of that party. The
duties and obligations of the parties shall be suspended for the
duration of the event preventing proper performance, provided,
however, that if, in the event of a work stoppage, such suspension
shall continue in excess of thirty (30) days, the parties shall meet
and attempt to arrive at a mutually acceptable compromise within the
spirit and intent of this Agreement, failing which, either party may
terminate this Agreement on sixty (60) days' prior written notice to
the other party.
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21. SEVERABILITY AND CONSTRUCTION
A. Each term or provision of this Agreement shall be considered
severable; and if, for any reason, any such term or provision herein
is determined to be invalid and contrary to, or in conflict with any
existing or future law or regulation by a court or agency having valid
jurisdiction, such shall not impair the operation of, or have any
other effect upon other terms or provisions of this Agreement as may
remain otherwise intelligible, and the latter shall continue to be
given full force and effect and bind the parties hereto; and said
invalid terms or provisions shall be deemed not to be a part of this
Agreement.
B. The captions appearing in this Agreement have been inserted for
convenience only and shall not control, define, limit, enlarge or
affect the meaning of this Agreement or any of its provisions.
22. ACKNOWLEDGMENT
A. Each party expressly disclaims the making of, and acknowledges that it
has not received, any warranty or guarantee, express or implied, as to
the potential volume, profits or success of the business venture
contemplated by this Agreement.
B. Each party acknowledges that it has received, read and understood this
Agreement and Appendices hereto.
23. CONFIDENTIALITY
A. Except in any proceeding to enforce the provisions of this Agreement
or hereafter provided AirTran and ValuJet hereby agree not to
publicize or disclose to any third party, except those attorneys,
accountants or consultants representing the parties, or in any
regulatory filing or notice, or in response to any request from any
governmental authority to which such party reasonably believes it is
obligated to respond, the terms or conditions of this Agreement
without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
B. Except in any proceeding to enforce the provisions of this Agreement
or hereafter provided herein, AirTran and ValuJet hereby agree not to
disclose to any third party any confidential information or data, both
oral and written, received from the other and designated as such by
the other without the prior written consent of the party providing
such confidential information or data.
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C. If either party is served with a subpoena or other process requiring
the production or disclosure of any of the agreements, information or
data described in this Agreement, then the party receiving such
subpoena or other process, before complying with such subpoena or
other process, shall promptly notify the other party of same and use
best efforts to permit said other party a reasonable period of time to
intervene and contest disclosure or production.
D. Upon termination of this Agreement, each party must return to the
other any confidential information or data received from the other and
designated as such by the party providing such confidential
information or data is still in the recipient's possession or control.
24. ENTIRE AGREEMENT
This Agreement, including Exhibits A through C inclusive, contains the
complete, final and exclusive agreement between the parties hereto with
respect to the subject matter hereof, and supersedes all previous
agreements and understandings with respect to such specific subject matter,
and said Agreement shall not be modified, amended or terminated by mutual
agreement or in any manner except by an instrument in writing, executed by
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have by their duly authorized
officers caused this Agreement to be entered into and signed as of the day
and year first above written.
ValuJet Airlines, Inc. AirTran Airways, Inc.
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- ---------------------------
Its: President and Its: President and
Chief Operating Officer Chief Operating Officer
----------------------- --------------------------
Date: September 23, 1997 Date: September 23, 1997
--------------------- ------------------------
15
Exhibit "A"
to Code Share Agreement
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made and entered into this 5th day of
September, 1997, by between AIRTRAN AIRLINES, INC., a corporation organized
and existing under the laws of the State of Delaware, whose principal place of
business is located in Orlando, Florida, (hereinafter called "AirTran"), and
VALUJET AIRLINES, INC., a corporation organized and existing under the laws of
the State of Nevada, whose principal place of business is located in Atlanta,
Georgia (hereinafter called "ValuJet").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Parties are in the business of providing commercial passenger
airline service; and
WHEREAS, the parent companies of the parties, AirWays Corporation, ValuJet,
Inc., respectively, have executed a Plan of Reorganization and Agreement of
Merger dated July 10, 1997 to effectuate a Merger between the parent companies
(the "Merger"); and
WHEREAS, in anticipation of the Merger, the Parties intend to execute a Code
Share Agreement (the "Code Share Agreement"); and
WHEREAS, AirTran is the owner of the entire right, title and interest in certain
trademarks and service marks (hereinafter the "Marks"), as well as the name "Air
▇▇▇▇ AirWays, Inc. (the "Name"), and AirTran's Designator Code (the "Designator
Code"), all of which are listed on Exhibit "A", attached hereto; and
WHEREAS, ValuJet desires a non-exclusive license to use AirTran's Marks, Name
and Designator Code; and
WHEREAS, AirTran is willing to grant a non-perpetual, non-exclusive license to
ValuJet for use of AirTran's Marks, Name, and Designator Code;
NOW, THEREFORE, in consideration of the mutual promises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1.Recitals Incorporated.
The aforesaid recitals are expressly incorporated herein as an essential part of
this Agreement.
2.Term.
The term of this License Agreement shall extend from year to year and may
be renewed at the option of Licensor. In the event that the Merger is not
consummated by November 30, 1997, the term of this License Agreement shall only
extend until May 31, 1998.
3. AirTran's Representations and Warranties.
AirTran intends to register or make applications in respect of, or
heretofore has registered or made application in respect of, each of the Marks
listed on Exhibit A. AirTran represents and warrants that it is the sole and
exclusive owner of the AirTran Marks (except the FL ▇▇▇▇), the Name and the
Designator Code, and has the full authority to enter into this Agreement and
license the use of the AirTran Marks (except the FL ▇▇▇▇), the Name and the
Designator Code to ValuJet hereunder, and that such license is legal, valid and
binding against AirTran.
4. Grant of License.
AirTran does hereby grant to ValuJet the non-exclusive right to use
AirTran's Marks, Name and Designator Code in connection with commercial
passenger airlines service. The non-exclusive license granted to ValuJet shall
be personal to ValuJet and to its successors, and shall not be transferred by
AirTran either voluntarily or by operation of law. Any such attempted
sublicense, sale, assignment or transfer shall be void. ValuJet shall conduct
all operations hereunder, and any additional operations undertaken by subsequent
amendment hereto, under the Marks Name and Designator Code set forth in Appendix
A. AirTran hereby grants to ValuJet, upon the terms and conditions herein
contained a nonexclusive, nontransferable right and license to use AirTran's
Marks Name and Designator Code and related rights pursuant to the terms of this
Agreement, and ValuJet hereby undertakes the obligation to use the license, in
connection with the services to be rendered by ValuJet under this Agreement.
5. Payment.
In the event that the Merger is not consummated by November 30, 1997,
ValuJet shall pay to AirTran the sum of One Dollar ($1.00) for each Revenue
Passenger carried by ValuJet during the period November 30, 1997 through January
14, 1998, and the sum of Two Dollars ($2.00) for each Revenue Passenger carried
by ValuJet during the period January 15, 1998 through May 31, 1998, as payment
for the non-exclusive license granted by AirTran for the use of the Marks,
Name and Designator Code. For purposes of this Agreement, Revenue Passenger is
defined as any non-airline passenger who holds a ticket, coupon, voucher,
confirmation number or other for of documentation which entitles that passenger
to board an aircraft. Revenue Passenger includes passengers traveling on a
purchased ticket (paper or electronic).
6. Terms and Conditions Governing License
(A) ValuJet hereby acknowledges AirTran's ownership of AirTran's Marks,
Name and Designator Code, further acknowledges the validity of
AirTran's Marks, and agrees that it shall not do anything in any way
to infringe or abridge AirTran's rights in its Marks, Name and
Designator Code or directly or indirectly to challenge the validity of
AirTran's Marks, Name and Designator Code.
(B) Nothing in this Section is intended to nor shall be construed so as to
relieve ValuJet of any liability or to impose any liability on AirTran
for ValuJet's operations by virtue of any of AirTran's rights under
this Agreement, whether exercised or not.
(C) Nothing in this Agreement is intended nor shall be construed to give
ValuJet the exclusive right to use AirTran's Marks, Name and
Designator Code, or to abridge AirTran's right to use or to license
its Marks, Name and Designator Code. AirTran hereby reserves the right
to continue use of AirTran's Marks, Name and Designator Code to
license such other uses of such Marks, Name and Designator Code as
AirTran may desire.
7. Notices.
All notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed to have been properly given or served by personal
delivery or by depositing in the United States mail, postage prepaid and
registered or certified, return receipt requested, and addressed to the
addressee set forth below. Each notice shall be effective upon being personally
delivered or upon the third business day after same is deposited in the United
States mail.
TO LICENSOR: AirTran AirWays, Inc.
Main Hangar Base
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TO LICENSEE: ValuJet Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
This Agreement shall be governed by the internal laws of the state of
Georgia, without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, Licensor has caused this License to be executed as of
this 5th day of September, 1997.
LICENSOR:
AIRTRAN AIRWAYS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Its: Vice President of Marketing
----------------------------------
LICENSEE:
VALUJET AIRLINES, INC.
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Its: President and
Chief Operating Officer
------------------------------------
Exhibit A to License Agreement
Marks Shown Here
EXHIBIT B
---------
MARKETS/AIRPORT PAIRS
---------------------
AirTran Airlines AirTran Airways
---------------- ---------------
Atlanta, GA/Akron-Canton, OH Akron-Canton, OH/Albany, NY
Boston, MA/*Chattanooga, TN Allentown, PA/Bloomington-Normal, IL
*Dalton, GA/Flint, MI/Fort Lauderdale, FL Boston, MA/Buffalo, NY
Fort ▇▇▇▇▇, FL/Fort ▇▇▇▇▇▇ Beach, FL Cincinnati, OH/Dayton, OH
Houston, TX/Jacksonville, FL/*Macon, GA Des Moines, IA
Memphis, TN/Mobile, AL/New Orleans, LA Greensboro-High Point-Winston Salem, NC
Newport News-Norfolk, VA Greenville-Spartanburg, SC/Islip, NY
Orlando, FL/Philadelphia, PA Kansas City, MO/Knoxville, TN
Raleigh-Durham, NC/Savannah, GA Newburgh, NY/Norfolk, VA
Tampa, FL/Washington, D.C. Omaha, NE/Quad Cities-Moline, IL
West Palm Beach, FL Richmond, VA/Rochester, NY
Syracuse, NY/Toledo, OH
*Served by AirTran Flightlink