x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
DELAWARE (State or other jurisdiction of incorporation or organization) | 06-1449146 (I.R.S. Employer Identification Number) |
Large accelerated filer o | Accelerated filer x | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Part I | ||
Item 1. | Business | |
Item 1A. | Risk Factors | |
Item 1B. | Unresolved Staff Comments | |
Item 2. | Properties | |
Item 3. | Legal Proceedings | |
Item 4. | Mine Safety Disclosures | |
Part II | ||
Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases Of Equity Securities | |
Item 6. | Selected Financial Data | |
Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | |
Item 7A. | Quantitative and Qualitative Disclosures About Market Risk | |
Item 8. | Financial Statements and Supplementary Data | |
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | |
Item 9A. | Controls and Procedures | |
Item 9B. | Other Information | |
Part III | ||
Item 10. | Directors, Executive Officers and Corporate Governance | |
Item 11. | Executive Compensation | |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | |
Item 13. | Certain Relationships and Related Transactions, and Director Independence | |
Item 14. | Principal Accounting Fees and Services | |
Part IV | ||
Item 15. | Exhibits, Financial Statements Schedules | |
Signatures | ||
Exhibit 10.45(e)†† | Amendment Number Four to Delta Connection Agreement by and among Delta Airlines, Inc., Shuttle America Corp. (as assignee of Republic Airline, Inc.) and Republic Airways Holdings, Inc., dated as of April 26, 2011. | |
Exhibit 10.67(a)†† | Amendment Number One to Purchase Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of March 11, 2011. | |
Exhibit 10.67(b)†† | Amendment Number Two to Purchase Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of November 16, 2011. | |
Exhibit 10.68(a)†† | Amendment Number One to Letter Agreement between Embraer S.A. (formerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of March 11, 2011 |
Exhibit 10.67(b)†† | Amendment Number Two to Letter Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of November 16, 2011. | |
Exhibit 10.71(a) | Amendment Number One to Commercial Agreement by and among Frontier Airlines, Inc., Republic Airways Holdings Inc. and FAPAInvest, LLC, dated as of September 28, 2011. | |
Exhibit 10.71(b) | Amendment Number Two to Commercial Agreement by and among Frontier Airlines, Inc., Republic Airways Holdings Inc. and FAPAInvest, LLC, dated as of December 30, 2011. | |
Exhibit 10.74†† | A320 Family Aircraft Purchase Agreement between Airbus S.A.S and Republic Airways Holdings Inc., dated as of September 30, 2011 | |
Exhibit 10.75†† | Amendment No. 25 to A318/A319 Purchase Agreement dated as of March 20, 2000 between Airbus S.A.S and Frontier Airlines, dated as of September 30, 2011. | |
EX-23.1 | Consent of Independent Registered Public Accounting Firm | |
EX-31.1 | Certification of Chief Executive Officer | |
EX-31.2 | Certification of Chief Financial Officer | |
EX-32.1 | Certification of Chief Executive Officer | |
EX-32.2 | Certification of Chief Financial Officer | |
Exhibit 101 | Interactive data file (furnished electronically herewith pursuant to Rule 406T of Regulation S-T. | |
†† | A request for confidential treatment was filed for certain portions of the indicated document. Confidential portions have been omitted and filed separately with the Commission as required by Rule 24b-2. |
Schedule of Operational Aircraft | ||||||||||||||||||||||||||
Operating Subsidiaries | Aircraft Size | Frontier | American | Continental | Delta | United | US Airways | Spares | Number of Aircraft | |||||||||||||||||
Chautauqua | 37 to 50 | 6 | 15 | 8 | 24 | — | 9 | 11 | 73 | |||||||||||||||||
Shuttle | 70 to 76 | — | — | — | 30 | 38 | — | — | 68 | |||||||||||||||||
Republic Airline | 69 to 99 | 21 | — | — | — | — | 58 | 1 | 80 | |||||||||||||||||
Frontier | 120 to 162 | 60 | — | — | — | — | — | — | 60 | |||||||||||||||||
Total number of operating aircraft | 87 | 15 | 8 | 54 | 38 | 67 | 12 | 281 |
• | Continue to operate a high-quality fleet of aircraft across an efficient network - We intend to maintain a modern, high-quality fleet of Embraer aircraft that meets or exceeds stringent industry operating standards and complies with the terms of our fixed-fee regional jet code-share agreements. We believe we have highly efficient flight and maintenance operations due to leveraging large crew and maintenance bases across multiple Partners' networks. |
• | Continue to provide efficient and effective solutions to our Partners - We have strong, long-term relationships with each of our Partners and have historically worked together with them to meet their operational and network needs. Historically, we have provided safe, reliable, and cost-efficient solutions for our Partners. We remain focused on anticipating and continuing to assist our Partners with their business strategies. |
• | Take advantage of growth opportunities to operate larger regional jets - Network carrier consolidation, along with high fuel prices, has limited the economic use of smaller regional jets. All of our Partners, including American, have shown an interest in having more, larger regional jets in their networks. We believe our existing relationship with our Partners and our strong relationship with Embraer make us well-positioned to take advantage of any growth opportunities. |
• | Compete effectively by providing our customers with low fares on our low-cost, narrowbody aircraft - Frontier offers a differentiated customer experience with its LiveTV and bundled fare offerings through its Classic and Classic Plus products, which are available for purchase on FrontierAirlines.com. We believe the restructuring completed in 2011 provides Frontier with low-cost narrowbody aircraft, which allows us to compete effectively in our highly contested markets. |
• | Further lower our unit costs (Cost per available seat mile "CASM") to become an ultra-low cost carrier - We are focused on our effort to further reduce operating costs at Frontier by reducing sales and distribution, marketing and costs associated with our airport operations. Additionally, Frontier will add six seats to its A320 aircraft, which will reduce CASM by approximately 3% on the A320 fleet. This is a highly cost-efficient project that will have a quick payback as we continue to see record load factors on Frontier. |
• | Take advantage of opportunities resulting from industry consolidation and expand Frontier's network outside of Denver, Colorado - Frontier continues to reduce its fleet complexity by removing regional aircraft flown by our other subsidiaries. We remain focused on our network and intend to develop new point-to-point opportunities outside of Denver in markets where we have competitive advantages. |
Partner | Hub and Focus Cities | |
American | Chicago, IL | |
Continental | Houston, TX and Cleveland, OH | |
Delta | Atlanta, GA, Cincinnati, OH, and New York, NY | |
United | Chicago, IL, Denver, CO, and Washington D.C., Newark, NJ | |
US Airways | Charlotte, NC, New York, NY, Philadelphia, PA, and Washington D.C. |
Employee Group | Number of Full- Time Equivalent Employees | Representing Union | Amendable Date | ||||
Pilots | 1,854 | International Brotherhood of Teamsters Airline Division Local 357 (Chautauqua, Republic, and Shuttle) | *Oct-07 | ||||
602 | International Brotherhood of Teamsters Airline Division Local 357 (Frontier) | Mar-17 | |||||
Flight Attendants | 1,565 | International Brotherhood of Teamsters Airline Division Local 135 | +Sep-09 | ||||
882 | Association of Flight Attendants - CWA ("AFA-CWA") | Mar-16 | |||||
Mechanics and tool room attendants | 147 | Teamsters Airline Division | Mar-12 | ||||
Groomers and cleaners | 108 | Teamsters Airline Division | Sep-15 | ||||
Dispatchers | 76 | Transport Workers Union of America Local 540 | Jun-12 | ||||
16 | Transport Workers Union | Sep-12 | |||||
Material Specialists | 24 | International Brotherhood of Teamsters | Mar-12 |
Name | Age | Position | |||
Bryan K. Bedford | 50 | Chairman of the Board, President and Chief Executive Officer | |||
Wayne C. Heller | 53 | Executive Vice President, Chief Operating Officer | |||
Timothy P. Dooley | 38 | Senior Vice President, Chief Financial Officer, Treasurer and Secretary | |||
Lars-Erik Arnell | 51 | Senior Vice President, Corporate Development | |||
Lawrence J. Cohen | 56 | Director | |||
Douglas J. Lambert | 54 | Director | |||
Mark L. Plaumann | 56 | Director | |||
Richard P. Schifter | 59 | Director | |||
Neal S. Cohen | 51 | Director | |||
David N. Siegel | 50 | Director |
• | require us to dedicate a substantial portion of cash flow from operations to the payment of principal and interest on indebtedness, thereby reducing the funds available for operations and future business opportunities; |
• | make it more difficult for us to satisfy our payment and other obligations under our indebtedness; |
• | limit our ability to borrow additional money for working capital, capital expenditures, acquisitions or other purposes, if needed, and increasing the cost of any of these borrowings; and/or |
• | reduce our flexibility in planning for or responding to changing business and economic conditions. |
• | the failure or inability of Embraer or Airbus to provide sufficient parts or related support services on a timely basis; |
• | the interruption of fleet service as a result of unscheduled or unanticipated maintenance requirements for these aircraft; |
• | the issuance of FAA directives restricting or prohibiting the use of Embraer or Airbus aircraft or requiring time-consuming inspections and maintenance; and |
• | the adverse public perception of a manufacturer as a result of an accident or other adverse publicity. |
• | announcements concerning our Partners, competitors, the airline industry or the economy in general; |
• | strategic actions by us, our Partners or our competitors, such as acquisitions or restructurings; |
• | the results of our operations; |
• | media reports and publications about the safety of our aircraft or the aircraft types we operate; |
• | new regulatory pronouncements and changes in regulatory guidelines; |
• | general and industry specific economic conditions, including the price of oil; |
• | changes in financial estimates or recommendations by securities analysts; |
• | sales of our common stock or other actions by investors with significant shareholdings or our Partners; and |
• | general market conditions. |
• | authorize the issuance of up to 5,000,000 shares of preferred stock that can be created and issued by our board of directors without prior stockholder approval, commonly referred to as “blank check” preferred stock, with rights senior to those of our common stock; |
• | limit the persons who can call special stockholder meetings; |
• | provide that a supermajority vote of our stockholders is required to amend our certificate of incorporation or bylaws; and |
• | establish advance notice requirements to nominate directors for election to our board of directors or to propose matters that can be acted on by stockholders at stockholder meetings. |
Type | Total Aircraft | Owned | Leased | Average Age (in years) | Seats in Standard Configuration | ||||||||||
E135/140LR | 18 | 12 | 6 | 9.7 | 44 | ||||||||||
E145LR (1) | 55 | 22 | 33 | 9.7 | 50 | ||||||||||
E170/175LR (2) | 129 | 106 | 23 | 5.3 | 69-80 | ||||||||||
E190LR | 17 | 12 | 5 | 2.0 | 99 | ||||||||||
A318 | 4 | — | 4 | 8.2 | 120 | ||||||||||
A319 | 41 | 4 | 37 | 7.4 | 138 | ||||||||||
A320 | 15 | 2 | 13 | 1.5 | 162 | ||||||||||
Q400 | 2 | 2 | — | 4.2 | 74 | ||||||||||
Total | 281 | 160 | 121 |
Facility | Square Feet | Location | |||
Corporate Headquarters | 83,100 | Indianapolis, IN | |||
Training Facility | 20,400 | Plainfield, IN | |||
Maintenance Hangar | 110,500 | Indianapolis, IN | |||
Maintenance Hangar/Office | 232,100 | Columbus, OH | |||
Maintenance Hangar | 70,000 | Louisville, KY | |||
Maintenance Hangar/Office | 86,000 | Pittsburgh, PA | |||
General Office - Frontier | 77,500 | Denver, CO | |||
Maintenance Hangar | 81,300 | Kansas City, MO | |||
Maintenance Hangar | 26,000 | Honolulu, HI | |||
Maintenance Hangar | 194,300 | Milwaukee, WI |
Year Ended December 31, 2010 | High | Low | |||||
First Quarter | $ | 7.65 | $ | 4.48 | |||
Second Quarter | 6.80 | 5.25 | |||||
Third Quarter | 8.58 | 4.74 | |||||
Fourth Quarter | 9.58 | 6.83 | |||||
Year Ended December 31, 2011 | |||||||
First Quarter | $ | 7.79 | $ | 5.73 | |||
Second Quarter | 6.47 | 4.21 | |||||
Third Quarter | 5.65 | 2.50 | |||||
Fourth Quarter | 4.78 | 2.47 |
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column A) | |||||||
Equity compensation plans approved by security holders | ||||||||||
Options outstanding under the 2002 Equity Incentive Plan | 1,149,837 | $ | 14.98 | 190,547 | ||||||
Options outstanding under the 2007 Equity Incentive Plan | 3,360,000 | 11.62 | 899,542 | |||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||
Total | 4,509,837 | $ | 12.46 | 1,090,089 |
Years Ended December 31, | |||||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
(in millions) | |||||||||||||||||||
Statement of Operations Data: | |||||||||||||||||||
Operating revenues: | |||||||||||||||||||
Fixed-fee service | $ | 1,079.0 | $ | 1,030.3 | $ | 1,180.2 | $ | 1,462.2 | $ | 1,274.6 | |||||||||
Passenger service | 1,694.5 | 1,541.3 | 421.0 | — | — | ||||||||||||||
Cargo and other | 91.0 | 82.1 | 41.0 | 17.5 | 18.1 | ||||||||||||||
Total operating revenues | 2,864.5 | 2,653.7 | 1,642.2 | 1,479.7 | 1,292.7 | ||||||||||||||
Operating expenses: | |||||||||||||||||||
Wages and benefits | 560.6 | 549.9 | 342.4 | 252.3 | 226.5 | ||||||||||||||
Aircraft fuel (2) | 821.1 | 616.9 | 236.6 | 327.8 | 296.6 | ||||||||||||||
Landing fees and airport rents | 167.7 | 170.7 | 96.9 | 59.9 | 53.7 | ||||||||||||||
Aircraft and engine rent | 251.5 | 240.6 | 156.8 | 134.2 | 125.0 | ||||||||||||||
Maintenance and repair | 297.2 | 255.8 | 211.5 | 169.4 | 130.2 | ||||||||||||||
Insurance and taxes | 42.1 | 45.5 | 28.1 | 25.8 | 19.0 | ||||||||||||||
Depreciation and amortization | 200.2 | 204.5 | 163.6 | 133.2 | 106.6 | ||||||||||||||
Promotion and sales | 133.6 | 134.8 | 36.3 | — | — | ||||||||||||||
Goodwill impairment | — | — | 113.8 | — | — | ||||||||||||||
Other impairment charges | 191.1 | 11.5 | 8.8 | — | — | ||||||||||||||
Gain on bargain purchase | — | — | (203.7 | ) | — | — | |||||||||||||
Other | 305.0 | 290.1 | 179.7 | 122.0 | 104.8 | ||||||||||||||
Total operating expenses | 2,970.1 | 2,520.3 | 1,370.8 | 1,224.6 | 1,062.4 | ||||||||||||||
Operating income (loss) | (105.6 | ) | 133.4 | 271.4 | 255.1 | 230.3 | |||||||||||||
Other income (expense): | |||||||||||||||||||
Interest expense | (137.3 | ) | (151.7 | ) | (145.0 | ) | (131.9 | ) | (107.3 | ) | |||||||||
Other - net | 0.5 | (3.2 | ) | 9.8 | 14.2 | 11.0 | |||||||||||||
Total other expense | (136.8 | ) | (154.9 | ) | (135.2 | ) | (117.7 | ) | (96.3 | ) | |||||||||
Income (loss) before income taxes | (242.4 | ) | (21.5 | ) | 136.2 | 137.4 | 134.0 | ||||||||||||
Income tax expense (benefit) | (90.6 | ) | (7.7 | ) | 99.8 | 52.8 | 51.2 | ||||||||||||
Net income (loss) | (151.8 | ) | (13.8 | ) | 36.4 | 84.6 | 82.8 | ||||||||||||
Add: Net loss attributable to noncontrolling interest in Mokulele Flight Service Inc. | — | — | 3.3 | — | — | ||||||||||||||
Net income (loss) of the Company | $ | (151.8 | ) | $ | (13.8 | ) | $ | 39.7 | $ | 84.6 | $ | 82.8 | |||||||
Net income (loss) available for common stockholders per share: | |||||||||||||||||||
Basic | $ | (3.14 | ) | $ | (0.38 | ) | $ | 1.15 | $ | 2.43 | $ | 2.05 | |||||||
Diluted | $ | (3.14 | ) | $ | (0.38 | ) | $ | 1.13 | $ | 2.42 | $ | 2.02 | |||||||
Weighted average common shares outstanding: | |||||||||||||||||||
Basic | 48.2 | 36.0 | 34.6 | 34.9 | 40.4 | ||||||||||||||
Diluted | 48.2 | 36.0 | 35.7 | 34.9 | 41.0 | ||||||||||||||
Other Financial Data: | |||||||||||||||||||
Net cash from: | |||||||||||||||||||
Operating activities | $ | 131.5 | $ | 256.5 | $ | 168.6 | $ | 242.3 | $ | 280.5 | |||||||||
Investing activities | $ | 23.6 | $ | 2.5 | $ | 3.4 | $ | (81.9 | ) | $ | (76.5 | ) | |||||||
Financing activities | $ | (227.0 | ) | $ | (125.3 | ) | $ | (144.2 | ) | $ | (194.7 | ) | $ | (235.5 | ) |
(in millions) | Years Ended December 31, | ||||||||||||||||||
2011 (1) | 2010 (1) | 2009 (1) | 2008 | 2007 | |||||||||||||||
Airline Operating Data: | |||||||||||||||||||
Passengers carried | 31.4 | 32.0 | 23.0 | 18.9 | 16.3 | ||||||||||||||
Revenue passenger miles (3) | 20,961.4 | 21,143.8 | 12,905.6 | 9,701.0 | 8,581.8 | ||||||||||||||
Available seat miles(4) | 26,227.7 | 26,547.3 | 17,116.5 | 13,213.7 | 11,511.8 | ||||||||||||||
Passenger load factor (5) | 79.9 | % | 79.6 | % | 75.4 | % | 73.4 | % | 74.5 | % | |||||||||
Revenue per available seat mile (6) | $ | 0.109 | $ | 0.100 | $ | 0.096 | $ | 0.112 | $ | 0.112 | |||||||||
Cost per available seat mile (7) | $ | 0.111 | $ | 0.100 | $ | 0.093 | $ | 0.103 | $ | 0.102 | |||||||||
Average passenger trip length (miles) | 661 | 662 | 562 | 513 | 527 | ||||||||||||||
Number of aircraft in operations (end of period): | |||||||||||||||||||
Regional Jets: | |||||||||||||||||||
Owned | 152 | 150 | 150 | 142 | 131 | ||||||||||||||
Leased | 67 | 72 | 78 | 79 | 88 | ||||||||||||||
Airbus: | |||||||||||||||||||
Owned | 6 | 11 | 13 | — | — | ||||||||||||||
Leased | 54 | 39 | 38 | — | — | ||||||||||||||
Q400: | |||||||||||||||||||
Owned | 2 | 3 | 6 | — | — | ||||||||||||||
Leased | — | — | 5 | — | — | ||||||||||||||
Total aircraft | 281 | 275 | 290 | 221 | 219 |
As of December 31, | |||||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
Consolidated Balance Sheet Data: | (in millions) | ||||||||||||||||||
Cash and cash equivalents | $ | 219.3 | $ | 291.2 | $ | 157.5 | $ | 129.7 | $ | 164.0 | |||||||||
Aircraft and other equipment—net | 2,808.7 | 3,173.5 | 3,418.2 | 2,692.4 | 2,308.7 | ||||||||||||||
Total assets | 3,901.7 | 4,348.7 | 4,450.5 | 3,236.6 | 2,773.1 | ||||||||||||||
Long-term debt, including current maturities | 2,359.1 | 2,577.7 | 2,789.4 | 2,277.8 | 1,913.6 | ||||||||||||||
Total stockholders' equity | 460.5 | 609.6 | 517.9 | 475.9 | 426.1 |
Schedule of Operational Aircraft | ||||||||||||||||||||||||||
Operating Subsidiaries | Aircraft Size | Frontier | American | Continental | Delta | United | US Airways | Spares | Number of Aircraft | |||||||||||||||||
Chautauqua Airlines | 37 to 50 | 6 | 15 | 8 | 24 | — | 9 | 11 | 73 | |||||||||||||||||
Shuttle America | 70 to 76 | — | — | — | 30 | 38 | — | — | 68 | |||||||||||||||||
Republic Airline | 69 to 99 | 21 | — | — | — | — | 58 | 1 | 80 | |||||||||||||||||
Frontier | 120 to 162 | 60 | — | — | — | — | — | — | 60 | |||||||||||||||||
Total number of operating aircraft | 87 | 15 | 8 | 54 | 38 | 67 | 12 | 281 |
• | Continue to operate a high-quality fleet of aircraft across an efficient network - We intend to maintain a modern, high-quality fleet of Embraer aircraft that meets or exceeds stringent industry operating standards and complies with the terms of our fixed-fee regional jet code-share agreements. We believe we have highly efficient flight and maintenance operations due to leveraging large crew and maintenance bases across multiple Partners' networks. |
• | Continue to provide efficient and effective solutions to our Partners - We have strong, long-term relationships with each of our Partners and have historically worked together with them to meet their operational and network needs. Historically, we have provided safe, reliable, and cost-efficient solutions for our Partners. We remain focused on anticipating and continuing to assist our Partners with their business strategies. |
• | Take advantage of growth opportunities to operate larger regional jets - Network carrier consolidation, along with high fuel prices, has limited the economic use of smaller regional jets. All of our Partners, including American, have shown an interest in having more, larger regional jets in their networks. We believe our existing relationship with our Partners and our strong relationship with Embraer make us well-positioned to take advantage of any growth opportunities. |
• | Compete effectively by providing our customers with low fares on our low-cost, narrowbody aircraft - Frontier offers a differentiated customer experience with its LiveTV and bundled fare offerings through its Classic and Classic Plus products, which are available for purchase on FrontierAirlines.com. We believe the restructuring completed in 2011 provides Frontier with low-cost narrowbody aircraft, which allows us to compete effectively in our highly contested markets. |
• | Further lower our unit costs (Cost per available seat mile "CASM") to become an ultra-low cost carrier - We are focused on our effort to further reduce operating costs at Frontier by reducing sales and distribution, marketing and costs associated with our airport operations. Additionally, Frontier will add six seats to its A320 aircraft, which will reduce CASM by approximately 3% on the A320 fleet. This is a highly cost-efficient project that will have a quick payback as we continue to see record load factors on Frontier. |
• | Take advantage of opportunities resulting from industry consolidation and expand Frontier's network outside of Denver, Colorado - Frontier continues to reduce its fleet complexity by removing regional aircraft flown by our other subsidiaries. We remain focused on our network and intend to develop new point-to-point opportunities outside of Denver in markets where we have competitive advantages. |
Operating Highlights - Fixed-Fee | Twelve Months Ended December 31, | ||||||||||||||||
2011 | Change | 2010 | Change | 2009 | |||||||||||||
Fixed-fee service revenues, excluding fuel (millions) (1) | $ | 976.5 | 1.4 | % | $ | 962.7 | (11.6 | )% | $ | 1,089.1 | |||||||
Passengers carried | 16,418,567 | (5.4 | )% | 17,355,097 | (7.6 | )% | 18,783,773 | ||||||||||
Revenue passenger miles (000's) (2) | 8,062,206 | (6.0 | )% | 8,572,623 | (10.3 | )% | 9,560,637 | ||||||||||
Available seat miles (000's) (3) | 11,191,105 | (1.4 | )% | 11,348,280 | (12.0 | )% | 12,894,899 | ||||||||||
Passenger load factor (4) | 72.0 | % | -3.5 pts | 75.5 | % | 1.4 pts | 74.1 | % | |||||||||
CASM,(5)(6) including interest expense, (cents) | 9.02 | 7.4 | % | 8.40 | 0.5 | % | 8.36 | ||||||||||
CASM,(5)(6) including interest and excluding fuel expense, (cents) | 8.10 | 3.8 | % | 7.80 | 2.0 | % | 7.65 | ||||||||||
Operating aircraft at period end: | |||||||||||||||||
37-50 seats | 56 | (13.8 | )% | 65 | (15.6 | )% | 77 | ||||||||||
69-86 seats (7) | 126 | 12.5 | % | 112 | — | % | 112 | ||||||||||
Block hours (8) | 601,499 | 1.5 | % | 592,821 | (12.1 | )% | 674,454 | ||||||||||
Departures | 350,279 | (1.2 | )% | 354,631 | (10.6 | )% | 396,559 | ||||||||||
Average daily utilization of each aircraft (hours) (9) | 10.0 | 1.0 | % | 9.9 | (2.0 | )% | 10.1 | ||||||||||
Average length of aircraft flight (miles) | 491 | 2.3 | % | 480 | (2.8 | )% | 494 | ||||||||||
Average seat density | 65 | (3.0 | )% | 67 | 1.5 | % | 66 |
Operating Highlights - Branded | Twelve Months Ended December 31 (10) | ||||||||||||||||
2011 | Change | 2010 | Change | 2009 | |||||||||||||
Total revenues (millions) | $ | 1,765.4 | 10.0 | % | $ | 1,604.5 | 261.1 | % | $ | 444.3 | |||||||
Passengers carried | 14,937,983 | 2.3 | % | 14,603,935 | 247.7 | % | 4,200,044 | ||||||||||
Revenue passenger miles (000's) (2) | 12,899,243 | 2.6 | % | 12,571,202 | 275.8 | % | 3,344,953 | ||||||||||
Available seat miles (000's) (3) | 15,036,619 | (1.1 | )% | 15,198,973 | 260.0 | % | 4,221,629 | ||||||||||
Passenger load factor (4) | 85.8 | % | 3.1 pts | 82.7 | % | 3.5 pts | 79.2 | % | |||||||||
Total revenue per available seat mile (cents) | 11.74 | 11.2 | % | 10.56 | 0.4 | % | 10.52 | ||||||||||
Passenger revenue per available seat mile (cents) | 11.27 | 11.1 | % | 10.14 | 1.7 | % | 9.97 | ||||||||||
CASM,(5)(6) (cents) | 12.39 | 13.4 | % | 10.93 | (4.5 | )% | 11.44 | ||||||||||
Fuel cost per available seat mile (cents) (10) | 4.78 | 32.4 | % | 3.61 | 5.3 | % | 3.43 | ||||||||||
CASM,(5)(6) excluding fuel expense (cents) | 7.60 | 3.8 | % | 7.32 | (5.1 | )% | 7.71 | ||||||||||
Gallons consumed | 220,824,996 | (3.2 | )% | 228,196,721 | 238.6 | % | 67,388,662 | ||||||||||
Average cost per gallon (11) | $ | 3.25 | 35.4 | % | $ | 2.40 | 11.6 | % | $ | 2.15 | |||||||
Operating aircraft at period end: | |||||||||||||||||
37-50 seats (12) | 6 | (53.8 | )% | 13 | 18.2 | % | 11 | ||||||||||
70-99 seats | 21 | (40.0 | )% | 35 | (7.9 | )% | 38 | ||||||||||
120+ seats | 60 | 20.0 | % | 50 | (2.0 | )% | 51 | ||||||||||
Block hours (8) | 349,300 | (8.1 | )% | 380,050 | 213.7 | % | 121,167 | ||||||||||
Departures | 167,223 | (8.7 | )% | 183,185 | 184.5 | % | 64,379 | ||||||||||
Average daily utilization of each aircraft (hours) (9) | 10.6 | (2.8 | )% | 10.9 | 1.9 | % | 10.7 | ||||||||||
Average length of aircraft flight (miles) | 831 | 0.5 | % | 827 | 10.4 | % | 749 | ||||||||||
Average seat density | 108 | 8.0 | % | 100 | 13.6 | % | 88 |
Years ended December 31, | |||||||||||||||||||||
2011 | 2010 | 2009 | |||||||||||||||||||
Amount | Cents per ASM | Amount | Cents per ASM | Amount | Cents per ASM | ||||||||||||||||
(in millions) | (in millions) | (in millions) | |||||||||||||||||||
OPERATING EXPENSES: | |||||||||||||||||||||
Wages and benefits | $ | 560.6 | 2.14 | $ | 549.9 | 2.07 | $ | 342.4 | 2.00 | ||||||||||||
Aircraft fuel | 821.1 | 3.13 | 616.9 | 2.32 | 236.6 | 1.38 | |||||||||||||||
Landing fees and airport rents | 167.7 | 0.64 | 170.7 | 0.64 | 96.9 | 0.57 | |||||||||||||||
Aircraft and engine rent | 251.5 | 0.96 | 240.6 | 0.91 | 156.8 | 0.92 | |||||||||||||||
Maintenance and repair | 297.2 | 1.13 | 255.8 | 0.96 | 211.5 | 1.24 | |||||||||||||||
Insurance and taxes | 42.1 | 0.16 | 45.5 | 0.17 | 28.1 | 0.16 | |||||||||||||||
Depreciation and amortization | 200.2 | 0.76 | 204.5 | 0.77 | 163.6 | 0.96 | |||||||||||||||
Promotion and sales | 133.6 | 0.51 | 134.8 | 0.51 | 36.3 | 0.21 | |||||||||||||||
Goodwill impairment | — | — | — | — | 113.8 | 0.66 | |||||||||||||||
Other impairment charges | 191.1 | 0.73 | 11.5 | 0.04 | 8.8 | 0.05 | |||||||||||||||
Gain on bargain purchase | — | — | — | — | (203.7 | ) | (1.19 | ) | |||||||||||||
Other | 305.0 | 1.16 | 290.1 | 1.10 | 179.7 | 1.05 | |||||||||||||||
Total operating expenses | $ | 2,970.1 | 11.32 | $ | 2,520.3 | 9.49 | $ | 1,370.8 | 8.01 | ||||||||||||
Interest expense | $ | 137.3 | 0.52 | $ | 151.7 | 0.57 | $ | 145.0 | 0.85 |
Payments Due By Period | |||||||||||||||||||
Beyond | |||||||||||||||||||
2012 | 2013-2014 | 2015-2016 | 2017 | Total | |||||||||||||||
Long-term debt (including interest) | $ | 334.0 | $ | 676.1 | $ | 629.1 | $ | 1,275.4 | $ | 2,914.6 | |||||||||
Operating leases | 275.7 | 509.0 | 413.3 | 444.2 | 1,642.2 | ||||||||||||||
Tax liability for uncertain tax positions | — | — | — | 8.1 | 8.1 | ||||||||||||||
Debt or lease financed aircraft purchase obligations | 13.0 | 68.5 | 1,858.1 | 948.5 | 2,888.1 | ||||||||||||||
Engines under firm orders | 9.1 | — | 35.0 | 7.0 | 51.1 | ||||||||||||||
Total contractual cash obligations | $ | 631.8 | $ | 1,253.6 | $ | 2,935.5 | $ | 2,683.2 | $ | 7,504.1 |
Gross Carrying Amount | Impairment | Net | |||||||||
Balance at January 1, 2009 | $ | 13.3 | $ | — | $ | 13.3 | |||||
Impairment during 2009 | — | (13.3 | ) | (13.3 | ) | ||||||
Midwest Acquisistion during 2009 | 100.4 | (100.4 | ) | — | |||||||
Balance at December 31, 2011, 2010 and 2009 | $ | 113.7 | $ | (113.7 | ) | $ | — |
Quarters Ended | |||||||||||||||
March 31 | June 30 | September 30 | December 31 | ||||||||||||
(in millions) | |||||||||||||||
2011 | |||||||||||||||
Operating revenues | $ | 659.1 | $ | 739.7 | $ | 767.9 | $ | 697.8 | |||||||
Operating income (loss) | (0.6 | ) | 12.2 | 48.9 | (166.1 | ) | |||||||||
Net income (loss) of the Company | (22.4 | ) | (14.9 | ) | 9.0 | (123.5 | ) | ||||||||
Net income (loss) per share: | |||||||||||||||
Basic | $ | (0.46 | ) | $ | (0.31 | ) | $ | 0.19 | $ | (2.55 | ) | ||||
Diluted | $ | (0.46 | ) | $ | (0.31 | ) | $ | 0.18 | $ | (2.55 | ) | ||||
Weighted average number of shares outstanding: | |||||||||||||||
Basic | 48.2 | 48.2 | 48.2 | 48.4 | |||||||||||
Diluted | 48.2 | 48.2 | 50.8 | 48.4 | |||||||||||
2010 | |||||||||||||||
Operating revenues | $ | 608.7 | $ | 683.3 | $ | 711.9 | $ | 649.8 | |||||||
Operating income (loss) | (20.0 | ) | 43.6 | 73.0 | 36.8 | ||||||||||
Net income (loss) of the Company | (36.5 | ) | 2.6 | 21.3 | (1.2 | ) | |||||||||
Net income (loss) per share: | |||||||||||||||
Basic | $ | (1.06 | ) | $ | 0.08 | $ | 0.62 | $ | (0.03 | ) | |||||
Diluted | $ | (1.06 | ) | $ | 0.08 | $ | 0.58 | $ | (0.03 | ) | |||||
Weighted average number of shares outstanding: | |||||||||||||||
Basic | 34.3 | 34.3 | 34.3 | 41.0 | |||||||||||
Diluted | 34.3 | 34.3 | 36.9 | 41.0 |
Report of Independent Registered Public Accounting Firm | |
Consolidated Balance Sheets as of December 31, 2011 and 2010 | |
Consolidated Statements of Operations for the years ended December 31, 2011, 2010 and 2009 | |
Consolidated Statements of Stockholders’ Equity and Comprehensive Income (Loss) for the years ended December 31, 2011, 2010 and 2009 | |
Consolidated Statements of Cash Flows for the years ended December 31, 2011, 2010 and 2009 | |
Notes to Consolidated Financial Statements |
2011 | 2010 | ||||||
ASSETS | |||||||
Current Assets: | |||||||
Cash and cash equivalents | $ | 219.3 | $ | 291.2 | |||
Restricted cash | 151.4 | 139.1 | |||||
Receivables—net of allowance for doubtful accounts of $0.6 and $1.2, respectively | 89.0 | 73.9 | |||||
Inventories—net | 101.8 | 94.6 | |||||
Prepaid expenses and other current assets | 64.2 | 56.4 | |||||
Assets held for sale | 33.0 | 43.5 | |||||
Deferred income taxes | 35.3 | 27.1 | |||||
Total current assets | 694.0 | 725.8 | |||||
Aircraft and other equipment—net | 2,808.7 | 3,173.5 | |||||
Maintenance deposits | 146.0 | 147.2 | |||||
Other intangible assets—net | 86.5 | 143.2 | |||||
Other assets | 166.5 | 159.0 | |||||
Total | $ | 3,901.7 | $ | 4,348.7 | |||
LIABILITIES AND STOCKHOLDERS' EQUITY | |||||||
Current Liabilities: | |||||||
Current portion of long-term debt | $ | 284.6 | $ | 269.0 | |||
Accounts payable | 43.9 | 43.8 | |||||
Air traffic liability | 179.5 | 174.9 | |||||
Deferred frequent flyer revenue | 68.2 | 51.0 | |||||
Accrued liabilities | 258.8 | 246.6 | |||||
Total current liabilities | 835.0 | 785.3 | |||||
Long-term debt—less current portion | 2,074.5 | 2,308.7 | |||||
Deferred frequent flyer revenue | 68.1 | 102.3 | |||||
Deferred credits and other non current liabilities | 110.4 | 108.1 | |||||
Deferred income taxes | 353.2 | 434.7 | |||||
Total liabilities | 3,441.2 | 3,739.1 | |||||
Commitments and contingencies | — | — | |||||
Stockholders' Equity: | |||||||
Preferred stock, $.001 par value; 5,000,000 shares authorized; no shares issued or outstanding | — | — | |||||
Common stock, $.001 par value; one vote per share; 150,000,000 shares authorized; 58,097,574 and 58,062,574 shares issued and 48,412,516 and 48,173,058 shares outstanding, respectively | — | — | |||||
Additional paid-in capital | 409.4 | 405.4 | |||||
Treasury stock, 9,333,266 shares at cost, respectively | (181.8 | ) | (181.8 | ) | |||
Accumulated other comprehensive loss | (4.0 | ) | (2.7 | ) | |||
Accumulated earnings | 236.9 | 388.7 | |||||
Total Stockholders' Equity | 460.5 | 609.6 | |||||
Total | $ | 3,901.7 | $ | 4,348.7 |
2011 | 2010 | 2009 | |||||||||
OPERATING REVENUES: | |||||||||||
Fixed-fee service | $ | 1,079.0 | $ | 1,030.3 | $ | 1,180.2 | |||||
Passenger service | 1,694.5 | 1,541.3 | 421.0 | ||||||||
Cargo and other | 91.0 | 82.1 | 41.0 | ||||||||
Total operating revenues | 2,864.5 | 2,653.7 | 1,642.2 | ||||||||
OPERATING EXPENSES: | |||||||||||
Wages and benefits | 560.6 | 549.9 | 342.4 | ||||||||
Aircraft fuel | 821.1 | 616.9 | 236.6 | ||||||||
Landing fees and airport rents | 167.7 | 170.7 | 96.9 | ||||||||
Aircraft and engine rent | 251.5 | 240.6 | 156.8 | ||||||||
Maintenance and repair | 297.2 | 255.8 | 211.5 | ||||||||
Insurance and taxes | 42.1 | 45.5 | 28.1 | ||||||||
Depreciation and amortization | 200.2 | 204.5 | 163.6 | ||||||||
Promotion and sales | 133.6 | 134.8 | 36.3 | ||||||||
Goodwill impairment | — | — | 113.8 | ||||||||
Other impairment charges | 191.1 | 11.5 | 8.8 | ||||||||
Gain on bargain purchase | — | — | (203.7 | ) | |||||||
Other | 305.0 | 290.1 | 179.7 | ||||||||
Total operating expenses | 2,970.1 | 2,520.3 | 1,370.8 | ||||||||
OPERATING INCOME (LOSS) | (105.6 | ) | 133.4 | 271.4 | |||||||
OTHER INCOME (EXPENSE): | |||||||||||
Interest expense | (137.3 | ) | (151.7 | ) | (145.0 | ) | |||||
Other—net | 0.5 | (3.2 | ) | 9.8 | |||||||
Total other expense | (136.8 | ) | (154.9 | ) | (135.2 | ) | |||||
INCOME (LOSS) BEFORE INCOME TAXES | (242.4 | ) | (21.5 | ) | 136.2 | ||||||
INCOME TAX EXPENSE (BENEFIT) | (90.6 | ) | (7.7 | ) | 99.8 | ||||||
NET INCOME (LOSS) | (151.8 | ) | (13.8 | ) | 36.4 | ||||||
Add: Net loss attributable to noncontrolling interest in Mokulele Flight Service Inc. | — | — | 3.3 | ||||||||
NET INCOME (LOSS) OF THE COMPANY | $ | (151.8 | ) | $ | (13.8 | ) | $ | 39.7 | |||
NET INCOME (LOSS) PER COMMON SHARE - BASIC | $ | (3.14 | ) | $ | (0.38 | ) | $ | 1.15 | |||
NET INCOME (LOSS) PER COMMON SHARE - DILUTED | $ | (3.14 | ) | $ | (0.38 | ) | $ | 1.13 |
Republic Airways Holdings Inc. Stockholders | |||||||||||||||||||||||||||
Accumulated | |||||||||||||||||||||||||||
Other | Additional | Other | |||||||||||||||||||||||||
Comprehensive | Paid-In | Treasury | Comprehensive | Accumulated | Noncontrolling | ||||||||||||||||||||||
Income (Loss) | Capital | Stock | Loss | Earnings | Interest | Total | |||||||||||||||||||||
Balance at January1, 2009 | — | $ | 297.4 | $ | (181.8 | ) | $ | (2.6 | ) | $ | 362.8 | $ | — | $ | 475.8 | ||||||||||||
Stock compensation expense | 5.2 | 5.2 | |||||||||||||||||||||||||
Decrease in Republic's APIC for purchase of Mokulele Flight Services, Inc. common stock from noncontrolling interest | (3.3 | ) | 3.3 | — | |||||||||||||||||||||||
Net income | $ | 36.4 | 39.7 | (3.3 | ) | 36.4 | |||||||||||||||||||||
Reclassification adjustment for loss realized on derivatives, net of tax | 0.4 | 0.4 | 0.4 | ||||||||||||||||||||||||
Comprehensive income | $ | 36.8 | |||||||||||||||||||||||||
Balance at December 31, 2009 | — | 299.3 | (181.8 | ) | (2.2 | ) | 402.5 | — | 517.8 | ||||||||||||||||||
Stock compensation expense | 4.1 | 4.1 | |||||||||||||||||||||||||
Exercise of employee stock options | 0.1 | 0.1 | |||||||||||||||||||||||||
Common stock offering, net | 101.9 | 101.9 | |||||||||||||||||||||||||
Net loss | $ | (13.8 | ) | (13.8 | ) | — | (13.8 | ) | |||||||||||||||||||
Pension and other postretirement plans, net of tax | (0.9 | ) | (0.9 | ) | (0.9 | ) | |||||||||||||||||||||
Reclassification adjustment for loss realized on derivatives, net of tax | 0.4 | 0.4 | 0.4 | ||||||||||||||||||||||||
Comprehensive loss | $ | (14.3 | ) | ||||||||||||||||||||||||
Balance at December 31, 2010 | — | 405.4 | (181.8 | ) | (2.7 | ) | 388.7 | — | 609.6 | ||||||||||||||||||
Stock compensation expense | 5.7 | 5.7 | |||||||||||||||||||||||||
Other | (1.7 | ) | (1.7 | ) | |||||||||||||||||||||||
Net loss | $ | (151.8 | ) | (151.8 | ) | (151.8 | ) | ||||||||||||||||||||
Pension and other postretirement plans, net of tax | (1.5 | ) | (1.5 | ) | (1.5 | ) | |||||||||||||||||||||
Reclassification adjustment for loss realized on derivatives, net of tax | 0.2 | 0.2 | 0.2 | ||||||||||||||||||||||||
Comprehensive loss | $ | (153.1 | ) | ||||||||||||||||||||||||
Balance at December 31, 2011 | $ | 409.4 | $ | (181.8 | ) | $ | (4.0 | ) | $ | 236.9 | $ | — | $ | 460.5 |
2011 | 2010 | 2009 | |||||||||
OPERATING ACTIVITIES: | |||||||||||
Net income (loss) | $ | (151.8 | ) | $ | (13.8 | ) | $ | 36.4 | |||
Adjustments to reconcile net income (loss) to net cash from operating activities: | |||||||||||
Goodwill and other impairment charges | 191.1 | 11.5 | 122.6 | ||||||||
Gain on bargain purchase | — | — | (203.7 | ) | |||||||
Depreciation and amortization | 200.2 | 204.5 | 163.6 | ||||||||
Debt issue costs and other amortization | 8.0 | 10.0 | 8.4 | ||||||||
Curtailment gain and non-cash pension expense | — | — | (7.5 | ) | |||||||
Deferred revenue amortization | (7.2 | ) | (7.2 | ) | (10.8 | ) | |||||
(Gain) loss on aircraft, slots and other equipment sales and disposals | (0.1 | ) | 4.8 | 4.9 | |||||||
Loss on extinguishment of debt | 4.9 | 4.4 | — | ||||||||
Stock compensation expense | 5.7 | 4.1 | 5.2 | ||||||||
Deferred income taxes | (90.7 | ) | (5.7 | ) | 101.7 | ||||||
Other, net | (4.1 | ) | 3.9 | 1.4 | |||||||
Changes in certain assets and liabilities: | |||||||||||
Restricted cash | (13.2 | ) | 54.1 | 9.6 | |||||||
Receivables | (9.6 | ) | (7.7 | ) | (4.3 | ) | |||||
Inventories | (7.7 | ) | (15.1 | ) | (15.6 | ) | |||||
Prepaid expenses and other current assets | (5.0 | ) | (12.8 | ) | (3.6 | ) | |||||
Accounts payable and accrued liabilities | 15.7 | (8.7 | ) | (20.0 | ) | ||||||
Air traffic liability | 6.5 | 36.6 | (15.7 | ) | |||||||
Deferred frequent flyer liability | (18.7 | ) | (1.5 | ) | 7.5 | ||||||
Other, net | 7.5 | (4.9 | ) | (11.5 | ) | ||||||
Net cash from operating activities | 131.5 | 256.5 | 168.6 | ||||||||
INVESTING ACTIVITIES: | |||||||||||
Purchase of aircraft and other equipment | (105.9 | ) | (58.7 | ) | (40.0 | ) | |||||
Proceeds from sale of aircraft, slots, and other equipment | 142.3 | 77.4 | 72.9 | ||||||||
Aircraft deposits | (22.4 | ) | (28.8 | ) | (5.5 | ) | |||||
Aircraft deposits returned | 12.0 | — | 14.5 | ||||||||
Funding of notes receivable | — | — | (61.1 | ) | |||||||
Acquisition of Frontier, net of cash acquired | — | — | 25.2 | ||||||||
Acquisition of Midwest, net of cash acquired | — | — | (1.9 | ) | |||||||
Advances from aircraft and other equipment agreements | — | 12.4 | — | ||||||||
Other, net | (2.4 | ) | 0.2 | (0.7 | ) | ||||||
Net cash from investing activities | 23.6 | 2.5 | 3.4 | ||||||||
FINANCING ACTIVITIES: | |||||||||||
Payments on debt | (208.5 | ) | (214.4 | ) | (145.7 | ) | |||||
Proceeds from refinancing of aircraft and issuance of debt | 70.7 | 49.3 | 75.1 | ||||||||
Proceeds from common stock offerings, net | — | 101.9 | — | ||||||||
Payments on early extinguishment of debt | (88.0 | ) | (60.0 | ) | (70.9 | ) | |||||
Proceeds from exercise of stock options | — | 0.1 | — | ||||||||
Payments for debt issue costs | (1.2 | ) | (2.2 | ) | (2.7 | ) | |||||
Net cash from financing activities | (227.0 | ) | (125.3 | ) | (144.2 | ) | |||||
Net changes in cash and cash equivalents | (71.9 | ) | 133.7 | 27.8 | |||||||
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR | 291.2 | 157.5 | 129.7 | ||||||||
CASH AND CASH EQUIVALENTS AT END OF YEAR | $ | 219.3 | $ | 291.2 | $ | 157.5 |
Operating | Aircraft | Fixed-Fee Code-Share Agreement Partners | Number of | |||||||||||||||||||||||
Subsidiaries | Size | Frontier | American | Continental | Delta | United | US Airways | Spares | Aircraft | |||||||||||||||||
Chautauqua Airlines | 37 to 50 | 6 | 15 | 8 | 24 | — | 9 | 11 | 73 | |||||||||||||||||
Shuttle America | 70 to 76 | — | — | — | 30 | 38 | — | — | 68 | |||||||||||||||||
Republic Airline | 69 to 99 | 21 | — | — | — | — | 58 | 1 | 80 | |||||||||||||||||
Frontier | 120 to 162 | 60 | — | — | — | — | — | — | 60 | |||||||||||||||||
Total number of operating aircraft | 87 | 15 | 8 | 54 | 38 | 67 | 12 | 281 |
Years ended December 31, | |||||||||||
(amounts in millions) | 2011 | 2010 | 2009 | ||||||||
CASH PAID FOR INTEREST AND INCOME TAXES: | |||||||||||
Interest paid-net of amount capitalized | $ | 127.5 | $ | 138.3 | $ | 134.7 | |||||
Income taxes paid-net of refunds | (0.5 | ) | (0.5 | ) | (0.3 | ) | |||||
NON-CASH INVESTING AND FINANCING TRANSACTIONS: | |||||||||||
Parts, training and lease credits received from aircraft manufacturer | — | — | (1.7 | ) | |||||||
Liabilities assumed in Mokulele transaction | — | — | 9.3 | ||||||||
Liabilities removed in Mokulele deconsolidation | — | — | 6.8 | ||||||||
Conversion of Mokulele note to equity | — | — | 3.0 | ||||||||
Liabilities assumed in Midwest acquisition | — | — | 182.0 | ||||||||
Liabilities assumed in Frontier acquisition | — | — | 757.7 | ||||||||
Convertible debt issued in Midwest acquisition | — | — | 25.0 | ||||||||
Frontier debtor-in-possession loan settled upon acquisition | — | — | 43.1 | ||||||||
US Airways note receivable and accrued interest applied to aicraft purchases | — | — | 35.2 | ||||||||
Aircraft, inventories, and other equipment purchased through direct financing arrangements | — | 5.4 | 315.3 | ||||||||
Engines received and not yet paid | 5.0 | 9.9 | 8.1 | ||||||||
Engines contributed in settlement of liability | — | — | 6.4 | ||||||||
Reduction of convertible debt | — | 2.7 | — |
December 31, | |||||||
(amounts in millions) | 2011 | 2010 | |||||
Funds held for holdback of customer sales | $ | 114.5 | $ | 99.2 | |||
Funds held for cash supported letters of credit and deposits on charter flights | 32.0 | 31.8 | |||||
Other | 4.9 | 8.1 | |||||
Total | $ | 151.4 | $ | 139.1 |
For the Years Ended December 31, | |||||||||||
2011 | 2010 | 2009 | |||||||||
Net income (loss) of the Company | $ | (151.8 | ) | $ | (13.8 | ) | $ | 39.7 | |||
Reduction in interest expense from convertible note (net of tax) | — | — | 0.5 | ||||||||
Net income (loss) of the Company for diluted net income (loss) per common share calculation | $ | (151.8 | ) | $ | (13.8 | ) | $ | 40.2 | |||
Weighted-average common shares outstanding for basic net income (loss) per common share | 48.2 | 36.0 | 34.6 | ||||||||
Effect of dilutive convertible note | — | — | 1.0 | ||||||||
Effect of dilutive employee stock options and warrants | — | — | 0.1 | ||||||||
Adjusted weighted-average common shares outstanding and assumed conversions for diluted net income (loss) per common share | 48.2 | 36.0 | 35.7 |
Level 1 | quoted prices (unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date. | |
Level 2 | quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly. | |
Level 3 | unobservable inputs for the asset or liability. |
As of | ||||||||||||||||
Prepaid Expenses | December 31, 2010 | Level 1 | Level 2 | Level 3 | ||||||||||||
Fuel hedge contracts | $ | 2.7 | $ | — | $ | 2.7 | $ | — | ||||||||
December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Aircraft fuel benefit (expense) | $ | 3.8 | $ | (3.6 | ) | $ | (0.1 | ) | ||||
($ in millions) | ||||||||||||||||
Fair Value Measurements Using | ||||||||||||||||
Description | Year ended 12/31/2011 | Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | Total Gains (Losses) | |||||||||||
Long-lived assets held and used | $ | 258.1 | $ | 258.1 | $ | (186.0 | ) | |||||||||
Long-lived assets held for sale | 34.5 | 34.5 | (5.1 | ) | ||||||||||||
$ | (191.1 | ) |
• | Republic was the largest unsecured creditor with a claim of $150.0 million and Republic would have received a significant portion of any payment made to the pool of unsecured creditors if another bidder would have successfully outbid Republic during the auction process |
• | Frontier was in bankruptcy and operates in a heavily regulated industry |
• | The airline industry is highly volatile and subject to significant fluctuation in one of its largest expenses, aircraft fuel |
• | The Denver market is highly competitive |
• | The illiquidity in the credit market may have kept other bidders from potentially coming forward to bid against Republic in the auction process because of their inability to obtain financing |
• | General recessionary economy |
• | There was only one other bidder in the auction process and their bid became nonbinding |
• | Frontier has significant net operating losses, net of Section 382 limitations, that Republic should be able to apply to future taxable income |
• | Frontier has a significant amount of operating leases that require significant cash flows for several years and the operating leases have return conditions that will potentially require significant cash flow at the end of the leases |
• | The aircraft acquired are used aircraft and therefore will require more maintenance in future periods |
• | The acquired business is expected to generate losses from continued operations for several months after the date of acquisition |
(amounts in millions) | Amount | ||
Total purchase consideration | $ | 108.8 | |
Assets acquired: | |||
Current assets * | $ | 318.7 | |
Aircraft and other equipment—net | 487.9 | ||
Other intangible assets | 83.3 | ||
Other assets | 180.3 | ||
Total assets acquired | $ | 1,070.2 | |
Liabilities assumed: | |||
Current liabilites | $ | 298.8 | |
Long-term liabilities | 360.5 | ||
Deferred income taxes | 98.4 | ||
Total liabilities assumed | $ | 757.7 | |
Gain on bargain purchase | $ | (203.7 | ) |
(amounts in millions) | Weighted-Average Amortization Period | Fair Value at Acquisition Date | ||
Indefinite-lived intangible assets: | ||||
Airport slots | Indefinite | $ | 5.8 | |
Frontier trade name | Indefinite | 23.6 | ||
Total indefinite-lived intangible assets | $ | 29.4 | ||
Definite-lived intangible assets: | ||||
Affinity credit card programs | 7.7 years | $ | 47.6 | |
Leasehold interests | 6.2 years | 6.3 | ||
Total definite-lived intangible assets | 7.5 years | $ | 53.9 | |
Total identifiable intangible assets | $ | 83.3 |
(amounts in millions) | Amount | ||
Total purchase consideration | |||
Cash | $ | 6.0 | |
Convertible note | 25.0 | ||
Assumed debt | 34.3 | ||
Total purchase consideration | $ | 65.3 | |
Assets acquired: | |||
Current assets | $ | 81.8 | |
Deferred income taxes | 3.0 | ||
Aircraft and other equipment—net | 9.8 | ||
Other intangible assets | 48.1 | ||
Other assets | 4.2 | ||
Total assets acquired | $ | 146.9 | |
Liabilities assumed: | |||
Current liabilites | $ | 122.5 | |
Other liabilities | 59.5 | ||
Total liabilities assumed | $ | 182.0 | |
Goodwill | $ | 100.4 |
(amounts in millions) | Weighted-Average Amortization Period | Fair Value at Acquisition Date | ||
Indefinite-lived intangible assets: | ||||
Airport slots | $ | 21.8 | ||
Midwest trade name | 11.4 | |||
Total indefinite-lived intangible assets | $ | 33.2 | ||
Definite-lived intangible assets: | ||||
Affinity credit card programs | 2.0 years | $ | 12.1 | |
Cargo contracts | 13.0 years | 2.8 | ||
Total definite-lived intangible assets | 4.1 years | $ | 14.9 | |
Total identifiable intangible assets | $ | 48.1 |
Year Ended | |||||
in millions, except per share amounts | December 31, 2009 | ||||
Operating revenues | $ | 2,683.5 | |||
Net income of the Company | 4.7 | ||||
Basic earnings per share | $ | 0.14 | |||
Diluted earnings per share | $ | 0.13 |
Amount | |||
Net income attributable to Republic | $ | 39.7 | |
Decrease in Republic's additional paid-in capital for purchase of Mokulele common shares | (3.3 | ) | |
Change from net income attributable to Republic and tranfers to noncontrolling interest | $ | 36.4 |
2011 | 2010 | ||||||
Two Q400 Aircraft | 30.3 | 33.2 | |||||
Flight equipment | 2.7 | 10.3 | |||||
Assets held for sale | $ | 33.0 | $ | 43.5 |
2011 | 2010 | ||||||
Aircraft | $ | 3,159.5 | $ | 3,608.7 | |||
Flight equipment | 271.9 | 264.9 | |||||
Office equipment and leasehold improvements | 52.7 | 41.1 | |||||
Total aircraft and other equipment | 3,484.1 | 3,914.7 | |||||
Less accumulated depreciation and amortization | (675.4 | ) | (741.2 | ) | |||
Aircraft and other equipment—net | $ | 2,808.7 | $ | 3,173.5 |
As of December 31, 2011 | As of December 31, 2010 | ||||||||||||||||
Weighted-Average Amortization Period | Gross carrying amount | Accumulated amortization | Gross carrying amount | Accumulated amortization | |||||||||||||
Indefinite-lived intangible assets: | |||||||||||||||||
Airport slots | $ | 27.6 | $ | 27.6 | |||||||||||||
Trade names | 20.6 | 20.6 | |||||||||||||||
Total indefinite-lived intangible assets | $ | 48.2 | $ | 48.2 | |||||||||||||
Definite-lived intangible assets: | |||||||||||||||||
Airport slots leased to US Airways | $ | — | $ | — | 47.5 | 2.0 | |||||||||||
Affinity credit card programs | 6.5 years | 47.6 | 14.6 | 59.7 | 16.7 | ||||||||||||
Other | 8.3 years | 8.1 | 2.8 | 8.1 | 1.6 | ||||||||||||
Total definite-lived intangible assets | 7.8 years | $ | 55.7 | $ | 17.4 | $ | 115.3 | $ | 20.3 | ||||||||
Intangible assets | $ | 103.9 | $ | 163.5 |
Fixed-fee | Branded | Total | |||||||||
Gross goodwill balance as of January 1, 2009 | $ | 13.3 | $ | — | $ | 13.3 | |||||
Goodwill acquired during 2009 | — | 100.4 | 100.4 | ||||||||
Gross goodwill balance as of December 31, 2009 | $ | 13.3 | $ | 100.4 | $ | 113.7 | |||||
Accumulated impairment losses as of January 1, 2009 | — | — | — | ||||||||
Goodwill impaired during 2009 | $ | (13.3 | ) | $ | (100.4 | ) | $ | (113.7 | ) | ||
Net goodwill balance as of December 31, 2011, 2010 and 2009 | $ | — | $ | — | $ | — |
2011 | 2010 | ||||||
Accrued wages, benefits and related taxes | $ | 43.6 | $ | 46.2 | |||
Accrued maintenance | 63.5 | 63.8 | |||||
Accrued interest payable | 18.8 | 19.9 | |||||
Deferred revenue | 30.3 | 27.8 | |||||
Other | 102.6 | 88.9 | |||||
Total accrued liabilities | $ | 258.8 | $ | 246.6 |
Secured debt: | 2011 | 2010 | ||||||
Promissory notes payable, collateralized by aircraft, bearing interest at fixed rates ranging from 4.76% to 8.49% at December 31, 2011 with semi-annual principal payments totaling $83.7 million through 2024. | $ | 1,938.6 | $ | 2,046.5 | ||||
Promissory notes payable, collateralized by aircraft, bearing interest at variable rates based on LIBOR plus a margin, ranging from 1.9% to 4.0% at December 31, 2011 with semi-annual principal payments totaling $12.1 million through 2023. | 304.9 | 421.6 | ||||||
Promissory notes payable, collateralized by eligible spare parts and equipment, bearing interest at fixed rates ranging from 7.11% to 8.38% as of December 31, 2011, semi-annual principal payments totaling $2.0 million through 2019. | 34.4 | 30.1 | ||||||
Promissory note payables, collateralized by eligible spare parts and equipment, bearing interest at variable rates of LIBOR plus a margin, ranging from 6.76% to 6.93% as of December 31, 2011, with semi-annual principal payments totaling $8.3 million through 2012. | 15.3 | 31.9 | ||||||
Discount on debt | (2.4 | ) | (7.9 | ) | ||||
Total debt secured by aircraft and parts | 2,290.8 | 2,522.2 | ||||||
Unsecured debt: | ||||||||
Convertible note payable, bearing interest at a fixed rate of 8%, due in full in 2014. | 22.3 | 22.3 | ||||||
Debt from affinity credit card program, bearing interest of 2.26% as of December 31, 2011 (LIBOR plus 2%), principal due monthly for twelve months beginning in 2016. | 45.0 | 29.2 | ||||||
Other debt | 1.0 | 4.0 | ||||||
Total unsecured debt | 68.3 | 55.5 | ||||||
Total debt | 2,359.1 | 2,577.7 | ||||||
Current portion (including debt related to assets held for sale) | (284.6 | ) | (269.0 | ) | ||||
Long term debt, less current portion | $ | 2,074.5 | $ | 2,308.7 |
2012 | $ | 284.6 | |
2013 | 234.7 | ||
2014 | 259.7 | ||
2015 | 248.2 | ||
2016 | 231.1 | ||
Thereafter | 1,100.8 | ||
Total | $ | 2,359.1 |
2011 | 2010 | 2009 | |||||||||
Aircraft and engine rent | $ | 251.5 | $ | 240.6 | $ | 156.8 | |||||
Other | 78.6 | 75.2 | 26.0 | ||||||||
Total rent expense | $ | 330.1 | $ | 315.8 | $ | 182.8 |
Aircraft | Other | Total | |||||||||
2012 | $ | 254.3 | $ | 21.4 | $ | 275.7 | |||||
2013 | 243.0 | 21.8 | 264.8 | ||||||||
2014 | 225.6 | 18.6 | 244.2 | ||||||||
2015 | 208.7 | 13.1 | 221.8 | ||||||||
2016 | 181.0 | 10.5 | 191.5 | ||||||||
Thereafter | 396.4 | 47.8 | 444.2 | ||||||||
Total | $ | 1,509.0 | $ | 133.2 | $ | 1,642.2 |
Payments Due By Period | |||||||||||||||||||||||||||
Beyond | |||||||||||||||||||||||||||
2012 | 2013 | 2014 | 2015 | 2016 | 2017 | Total | |||||||||||||||||||||
Debt or lease financed aircraft under purchase obligations | $ | 13.0 | $ | 68.0 | $ | 0.5 | $ | 792.2 | $ | 1,065.9 | $ | 948.5 | $ | 2,888.1 | |||||||||||||
Engines under firm orders | 9.1 | — | — | 14.0 | 21.0 | 7.0 | 51.1 | ||||||||||||||||||||
Total contractual obligations for aircraft and engines | $ | 22.1 | $ | 68.0 | $ | 0.5 | $ | 806.2 | $ | 1,086.9 | $ | 955.5 | $ | 2,939.2 |
(in millions) | Common Stock | |||||
2011 | 2010 | 2009 | ||||
Beginning Balance | 48.2 | 34.6 | 34.6 | |||
Stock offering | — | 13.8 | — | |||
Shares issued for stock options exercised | — | 0.3 | — | |||
Vesting of restricted stock and other | 0.2 | (0.5 | ) | — | ||
Ending Balance | 48.4 | 48.2 | 34.6 |
Options | Weighted Average Exercise Price | Aggregate Intrinsic Value | Weighted Average Contractual Term (in years) | ||||||||||
Outstanding at January 1, 2011 | 5,289,919 | $ | 12.69 | ||||||||||
Granted | 75,000 | 5.04 | |||||||||||
Exercised | — | — | |||||||||||
Forfeited | (855,082 | ) | 13.23 | ||||||||||
Outstanding at December 31, 2011 | 4,509,837 | $ | 12.46 | $ | — | 6.31 | |||||||
Vested or expected to vest at December 31, 2011 | 4,379,286 | $ | 12.68 | $ | — | 6.20 | |||||||
Exercisable at December 31, 2011 | 3,514,492 | $ | 14.27 | $ | — | 5.72 |
December 31, | ||||||||
2011 | 2010 | 2009 | ||||||
Dividend yield | — | — | — | |||||
Expected volatility | 60%-61% | 60%-61% | 58%-63% | |||||
Risk-free interest rate | 1.2%-2.0% | 1.2%-2.0% | 2.2%-2.9% | |||||
Expected life (in years) | 4-5 | 4-5 | 4-5 |
Restricted Stock Awards | ||
Unvested at January 1, 2011 | 556,250 | |
Vested | (239,446 | ) |
Issued | 50,000 | |
Surrendered | (15,012 | ) |
Unvested at December 31, 2011 | 351,792 |
2011 | 2010 | 2009 | |||||||||
Federal: | |||||||||||
Current | $ | (0.1 | ) | $ | (2.1 | ) | $ | — | |||
Deferred | (78.2 | ) | (2.8 | ) | 92.9 | ||||||
Total Federal | (78.3 | ) | (4.9 | ) | 92.9 | ||||||
State: | |||||||||||
Current | 0.2 | 0.1 | (1.1 | ) | |||||||
Deferred | (11.9 | ) | (1.3 | ) | 8.0 | ||||||
Total State | (11.7 | ) | (1.2 | ) | 6.9 | ||||||
Valuation allowance | (0.6 | ) | (3.4 | ) | (0.8 | ) | |||||
Expense for uncertain tax positions | — | 1.8 | 0.8 | ||||||||
Income tax (benefit) expense | $ | (90.6 | ) | $ | (7.7 | ) | $ | 99.8 |
2011 | 2010 | 2009 | |||||||||
Federal income tax (benefit) expense at statutory rate | $ | (84.8 | ) | $ | (7.5 | ) | $ | 47.7 | |||
State income tax (benefit) expense, net of federal benefit (expense) | (7.3 | ) | (0.7 | ) | 4.1 | ||||||
Goodwill impairment | — | — | 43.2 | ||||||||
Valuation allowance | (0.6 | ) | (3.4 | ) | (0.8 | ) | |||||
Other | 2.1 | 3.9 | 5.6 | ||||||||
Income tax (benefit) expense | $ | (90.6 | ) | $ | (7.7 | ) | $ | 99.8 |
2011 | 2010 | ||||||
DEFERRED TAX ASSETS: | |||||||
Current: | |||||||
Deferred frequent flyer revenue | $ | 25.9 | $ | 19.3 | |||
Nondeductible reserves and accruals | 23.4 | 18.7 | |||||
Total | 49.3 | 38.0 | |||||
Valuation allowance | (14.0 | ) | (10.9 | ) | |||
Total current deferred tax assets | $ | 35.3 | $ | 27.1 | |||
Noncurrent: | |||||||
Nondeductible accruals and deferred revenue | $ | 43.9 | $ | 49.1 | |||
Deferred frequent flyer revenue | 25.9 | 38.9 | |||||
Federal and state net operating loss carryforwards, net of liability for uncertain tax positions | 483.6 | 449.0 | |||||
AMT credits | 6.4 | 8.2 | |||||
Prepaid rent | 4.4 | — | |||||
Deferred credits and sale leaseback gain | 17.7 | 21.9 | |||||
Other | 13.2 | 14.7 | |||||
Total | 595.1 | 581.8 | |||||
Valuation allowance | (168.5 | ) | (156.0 | ) | |||
Total noncurrent deferred tax assets | 426.6 | 425.8 | |||||
DEFERRED TAX LIABILITIES: | |||||||
Noncurrent: | |||||||
Other intangible assets, including slot amortization | (29.9 | ) | (45.8 | ) | |||
Maintenance deposits | (54.1 | ) | (54.8 | ) | |||
Deferred rent | — | (20.2 | ) | ||||
Stock basis difference in subsidiary from gain on bargain purchase | (77.4 | ) | (77.4 | ) | |||
Accelerated depreciation and fixed asset basis differences for tax purposes | (618.4 | ) | (662.3 | ) | |||
Total noncurrent deferred tax liabilities | (779.8 | ) | (860.5 | ) | |||
Total net noncurrent deferred tax liabilities | $ | (353.2 | ) | $ | (434.7 | ) |
2011 | 2010 | 2009 | |||||||||
Balance at January 1, | $ | 8.1 | $ | 6.3 | $ | 5.3 | |||||
Additions based on tax positions taken in current year | — | — | 0.8 | ||||||||
Additions based on acquisitions in current year | — | — | 0.2 | ||||||||
Additions for tax positions taken in prior years | — | 2.0 | — | ||||||||
Reductions for tax positions of prior years | — | (0.2 | ) | — | |||||||
Settlements with tax authorities | — | — | — | ||||||||
Balance at December 31, | $ | 8.1 | $ | 8.1 | $ | 6.3 |
2011 | 2010 | 2009 | |||||||||
Balance at January 1, | $ | 166.9 | $ | 200.9 | $ | 9.5 | |||||
Additions based on current year acquisitions and 382 limitation | — | — | 192.2 | ||||||||
Additions based on filing the final pre-acquisition tax returns for Midwest and Frontier | 16.2 | 5.7 | — | ||||||||
Reduction of net operating losses previously reserved that were forgone in tax return filings | — | (36.3 | ) | — | |||||||
Additions (deductions) for change in current year analysis | (0.6 | ) | (3.4 | ) | (0.8 | ) | |||||
Balance at December 31, | $ | 182.5 | $ | 166.9 | $ | 200.9 |
Midwest Qualified Defined-Benefit Plan | |||||||||
Years Ended December 31, | Period From August 1 to December | ||||||||
Change in Projected Benefit Obligation | 2011 | 2010 | 2009 | ||||||
Net benefit obligation — beginning of period | $ | 14.0 | $ | 11.4 | $ | 9.7 | |||
Service cost | — | — | 0.2 | ||||||
Interest cost | 0.7 | 0.7 | 0.3 | ||||||
Actuarial gain | 1.6 | 2.1 | (0.1 | ) | |||||
Gross benefits paid | (0.4 | ) | (0.2 | ) | (0.1 | ) | |||
Curtailments | — | — | 1.4 | ||||||
Net projected obligation — end of period | $ | 15.9 | $ | 14.0 | $ | 11.4 | |||
Change in Plan Assets | |||||||||
Fair value of assets — beginning of period | $ | 10.1 | $ | 9.0 | $ | 8.3 | |||
Actual return on plan assets | (0.3 | ) | 1.3 | 0.8 | |||||
Employer contribution | 0.7 | — | — | ||||||
Gross benefits paid | (0.4 | ) | (0.2 | ) | (0.1 | ) | |||
Fair value of plan assets — end of period | $ | 10.1 | $ | 10.1 | $ | 9.0 | |||
Accrued benefit liability (recorded in deferred credits and other noncurrent liabilities) | $ | (5.8 | ) | $ | (3.9 | ) | $ | (2.4 | ) |
Fleet Transition and Other Integration | Severance | Total | Asset Impairment and Loss on Disposal or Sale of Assets | |||||||||||||
Accrual balances as of January 1, 2009 | $ | — | $ | — | $ | — | ||||||||||
Severance | 7.0 | 7.0 | ||||||||||||||
Other impairment and charges | — | — | — | $ | 6.8 | |||||||||||
Total expense | — | 7.0 | 7.0 | |||||||||||||
Cash paid | (5.8 | ) | (5.8 | ) | ||||||||||||
Accrual balances as of December 31, 2009 | $ | — | $ | 1.2 | $ | 1.2 | ||||||||||
Severance | — | 15.5 | 15.5 | |||||||||||||
Other impairment and charges | 25.0 | — | 25.0 | $ | 25.3 | |||||||||||
Total expense | 25.0 | 15.5 | 40.5 | |||||||||||||
Cash paid | (22.8 | ) | (15.9 | ) | (38.7 | ) | ||||||||||
Accrual balances as of December 31, 2010 | 2.2 | 0.8 | 3.0 | |||||||||||||
Severance | — | 0.2 | 0.2 | |||||||||||||
Other impairment and charges | 0.3 | — | 0.3 | $ | 39.8 | |||||||||||
Total expense | 0.3 | 0.2 | 0.5 | |||||||||||||
Cash paid | (2.5 | ) | (1.0 | ) | (3.5 | ) | ||||||||||
Accrual balances as of December 31, 2011 | $ | — | $ | — | $ | — | ||||||||||
Year Ended December 31, 2011 | Fixed-fee | Branded | Other | Total | ||||||||||||
Total operating revenue | $ | 1,080.2 | $ | 1,765.4 | $ | 18.9 | $ | 2,864.5 | ||||||||
Aircraft fuel | 102.5 | 718.6 | — | 821.1 | ||||||||||||
Depreciation and amortization | 130.8 | 63.3 | 6.1 | 200.2 | ||||||||||||
Other impairment charge 2 | 160.0 | 8.3 | 22.8 | 191.1 | ||||||||||||
Income (loss) before income taxes | (89.4 | ) | (135.5 | ) | (17.5 | ) | (242.4 | ) | ||||||||
Total assets1 | 2,294.5 | 1,487.7 | 119.5 | 3,901.7 | ||||||||||||
Total debt1 | 1,795.1 | 455.9 | 108.1 | 2,359.1 |
Year Ended December 31, 2010 | Fixed-fee | Branded | Other | Total | ||||||||||||
Total operating revenue | $ | 1,030.4 | $ | 1,604.5 | $ | 18.8 | $ | 2,653.7 | ||||||||
Aircraft fuel | 67.6 | 549.2 | 0.1 | 616.9 | ||||||||||||
Depreciation and amortization | 124.4 | 73.4 | 6.7 | 204.5 | ||||||||||||
Other impairment charge | — | 11.5 | — | 11.5 | ||||||||||||
Income (loss) before income taxes | 77.2 | (99.4 | ) | 0.7 | (21.5 | ) | ||||||||||
Total assets | 2,812.2 | 1,324.0 | 212.5 | 4,348.7 | ||||||||||||
Total debt | 2,238.7 | 249.7 | 89.3 | 2,577.7 |
Year Ended December 31, 2009 | Fixed-fee | Brand | Other | Total | ||||||||||||
Total operating revenue | $ | 1,180.4 | $ | 444.3 | $ | 17.5 | $ | 1,642.2 | ||||||||
Aircraft fuel | 91.3 | 144.9 | 0.4 | 236.6 | ||||||||||||
Depreciation and amortization | 132.4 | 21.9 | 9.3 | 163.6 | ||||||||||||
Other impairment charge | — | 8.8 | — | 8.8 | ||||||||||||
Income (loss) before income taxes | 86.7 | 57.9 | (8.4 | ) | 136.2 | |||||||||||
Total assets | 2,549 | 1,672.7 | 228.8 | 4,450.5 | ||||||||||||
Total debt | 1,830.7 | 780.2 | 193.3 | 2,804.2 |
(amounts in millions) Description | Balance at Beginning of Year | Additions Charged to Expense | Deductions | Balance at End of Year | ||||||||||||
Allowance for doubtful accounts receivables: | ||||||||||||||||
12/31/2011 | $ | 1.2 | $ | — | $ | (0.6 | ) | (1) | $ | 0.6 | ||||||
12/31/2010 | 0.7 | 1.7 | (1.2 | ) | (1) | 1.2 | ||||||||||
12/31/2009 | 2.0 | 0.3 | (1.6 | ) | (1) | 0.7 | ||||||||||
Valuation allowance on notes receivable: | ||||||||||||||||
12/31/2011 | $ | — | $ | — | $ | — | $ | — | ||||||||
12/31/2010 | — | — | — | — | ||||||||||||
12/31/2009 | 1.5 | 3.0 | (4.5 | ) | (2) | — |
(1) | Uncollectible accounts written off net of recoveries, if any. |
(2) | Valuation allowance from Mokulele notes receivable was eliminated upon consolidation of Mokulele. |
Exhibit No. | Description |
1.1 | Form of Purchase Agreement.(viii) |
1.2 | Underwriting Agreement, dated as of November 11, 2010, by and among the Company, Goldman, Sachs & Co. and Deutsche Bank Securities, as representatives of the underwriters named therein. (xlvi) |
3.1 | Amended and Restated Certificate of Incorporation.(i) |
3.2 | Amended and Restated Bylaws.(l) |
4.1 | Specimen Stock Certificate.(i) |
10.1 | 2002 Equity Incentive Plan.(xxiv) |
10.1(a) | Restricted Stock Agreement.(xx) |
10.1(b) | 2007 Equity Incentive Plan.(xxiv) |
10.2 | Form of Option Agreement for Non-Employee Directors.(i) |
10.3 | Form of Option Agreement for Officers.(i) |
10.3(a) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Bryan K. Bedford, dated as of December 27, 2004.(v) |
10.3(b) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Bryan K. Bedford, dated as of December 27, 2004.(v) |
10.3(c) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Robert Hal Cooper, dated as of December 27, 2004.(v) |
10.3(d) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Robert Hal Cooper, dated as of December 27, 2004.(v) |
10.3(e) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Wayne C. Heller, dated as of December 27, 2004.(v) |
10.3(f) | Stock Option Agreement Pursuant to the Republic Airways Holdings Inc. 2002 Equity Incentive Plan, by and between Republic Airways Holdings Inc. and Wayne C. Heller, dated as of December 27, 2004.(xxiii) |
10.4† | Amended and Restated Regional Jet Air Services Agreement, dated as of June 12, 2002, by and between AMR Corporation and Chautauqua Airlines, Inc.(i) |
10.4(a) | Letter Agreement between AMR Corporation and Chautauqua Airlines, Inc. dated July 30, 2002.(i) |
10.4(b)† | Side Letter Agreement, dated as of March 26, 2003, by and between AMR Corporation and Chautauqua Airlines, Inc.(i) |
10.4(c)† | Amendment to Amended and Restated Air Services Agreement, by and between AMR Corporation and Chautauqua Airlines, Inc., dated as of October 28, 2003.(i) |
10.4(d)† | Amendment to the Amended and Restated Air Services Agreement, by and between AMR Corporation and Chautauqua Airlines, Inc., dated as of October 23, 2008. (xxxiii) |
10.5 | Office Lease Agreement, by and between College Park Plaza, LLC and Republic Airways Holdings Inc., dated as of April 23, 2004.(i) |
10.6† | Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of March 19, 1999.(i) |
10.6(a)† | First Amendment to the Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of September 6, 2000.(i) |
10.6(b)† | Second Amendment to the Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of September 20, 2000.(i) |
10.6(c)† | Third Amendment to the Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of July 11, 2001.(i) |
10.6(d)† | Fourth Amendment to the Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of December 18, 2002.(i) |
10.6(e)† | Amended and Restated Chautauqua Jet Service Agreement between US Airways, Inc. and Chautauqua Airlines, Inc. dated April 26, 2005.(xiii) |
10.6(f)† | First Amendment to Amended and Restated Chautauqua Jet Service Agreement, by and between US Airways, Inc. and Chautauqua Airlines, Inc., dated as of July 21, 2006.(xix) |
10.7 | Agreement between Chautauqua Airlines, Inc. and Teamsters Airline Division Local 747 representing the Pilots of Chautauqua Airlines, dated as of October 17, 2003.(i) |
10.8 | Agreement between Chautauqua Airlines, Inc. and the Flight Attendants of Chautauqua Airlines, Inc. as represented by the Airline Division, International Brotherhood of Teamsters, AFL-CIO, dated as of March 9, 1999.(i) |
10.9 | Agreement between Chautauqua Airlines, Inc. and the Flight Dispatchers in the employ of Chautauqua Airlines, Inc. as represented by Transport Workers Union of America, AFL-CIO, dated as of June 1, 2007.(xxvi) |
10.10 | Agreement between Chautauqua Airlines, Inc. and the Passenger and Fleet Service Employees in the service of Chautauqua Airlines, Inc. as represented by the International Brotherhood of Teamsters, dated as of December 15, 1999.(i) |
10.11 | Agreement among Republic Airways Holdings Inc., Chautauqua Airlines, Inc. and Solitair Corp., dated as of February 12, 2002.(i) |
10.12† | EMB-145LR Amended and Restated Purchase Agreement Number GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of April 19, 2002.(i) |
10.12(a)† | Partial Assignment and Assumption of Purchase Agreement GCT-025/98, by and between Republic Airways Holdings Inc. and Solitair Corp., and consented to by Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of April 18, 2002.(i) |
10.12(b)† | Amendment Number 1 to Amended and Restated Purchase Agreement GCT-025/98 between Republic Airways Holdings Inc and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of June 7, 2002.(i) |
10.12(c)† | Amendment Number 2 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of July 25, 2002.(i) |
10.12(d)† | Amendment Number 3 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of December 18, 2002.(i) |
10.12(e)† | Amendment Number 4 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of May 30, 2003.(i) |
10.12(f)† | Amendment Number 5 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of September 30, 2003.(i) |
10.12(g)† | Amendment Number 6 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of October 31, 2003.(i) |
10.12(h)† | Amendment Number 7 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of December 31, 2003.(i) |
10.12(i)† | Amendment Number 8 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of February 16, 2004.(i) |
10.12(j)† | Amendment Number 9 to Amended and Restated Purchase Agreement GCT-025/98, by and between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of May 24, 2004.(viii) |
10.12(l)† | Amendment Number 10 to Amended and Restated Purchase Agreement GCT-025/98, by and between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of January 17, 2005.(vii) |
10.12(m)† | Amendment No. 11 to Amended and Restated Purchase Agreement GCT-025/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated May 31, 2005.(xiii) |
10.13† | Amended and Restated Letter Agreement GCT-026/98, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airways Holdings Inc., dated as of April 19, 2002.(i) |
10.13(a)† | Amendment Number 1 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of June 7, 2002.(i) |
10.13(b)† | Amendment Number 2 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of July 25, 2002.(i) |
10.13(c)† | Amendment Number 3 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of August 29, 2002.(i) |
10.13(d)† | Amendment Number 4 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of December 10, 2002.(i) |
10.13(e)† | Amendment Number 5 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of April 30, 2003.(i) |
10.13(f)† | Amendment Number 6 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of May 30, 2003.(i) |
10.13(g)† | Amendment Number 7 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of December 31, 2003.(i) |
10.13(h)† | Amendment Number 8 to Amended and Restated Letter Agreement GCT-026/98 between Republic Airways Holdings Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of March 22, 2004.(i) |
10.14 | Amended and Restated Registration Rights Agreement, dated as of June 7, 2002, by and among Republic Airways Holdings Inc., Imprimis Investors, LLC, Wexford Spectrum Fund I, L.P., Wexford Offshore Spectrum Fund, Wexford Partners Investment Co. LLC, WexAir LLC, and Delta Air Lines, Inc.(i) |
10.15 | Loan and Security Agreement, by and between Fleet Capital Corporation and Chautauqua Airlines, Inc., dated as of December 9, 1998.(i) |
10.16 | Consolidated Amendment No. 1 to Loan and Security Agreement, by and between Fleet Capital Corporation and Chautauqua Airlines, Inc., dated as of March 27, 2002.(i) |
10.16(a)† | Amendment No. 3 to Loan and Security Agreement, by and between Fleet Capital Corporation and Chautauqua Airlines, Inc., dated as of October 30, 2003.(i) |
10.16(b) | Amendment No. 4 to Loan and Security Agreement, by and between Fleet Capital Corporation and Chautauqua Airlines, Inc., dated as of January 9, 2004.(i) |
10.16(c) | Amendment No. 8 to Loan and Security Agreement, by and between Bank of America, N.A. (successor by assignment to Fleet Capital Corporation) and Chautauqua Airlines, Inc., dated as of November 2, 2005.(xvi) |
10.16(d) | Amendment No. 9 to Loan and Security Agreement, by and between Bank of America, N.A. (successor by assignment to Fleet Capital Corporation) and Chautauqua Airlines, Inc., dated as of January 12, 2006.(xvii) |
10.16(e) | Amendment No. 10 to Loan and Security Agreement, by and between Bank of America, N.A. (successor by assignment to Fleet Capital Corporation) and Chautauqua Airlines, Inc., dated as of March 22, 2006.(xvii) |
10.16(f) | Joinder and Consolidated Amendment to Loan and Security Agreement, by and among Bank of America, N.A., Chautauqua Airlines, Inc., Republic Airways Holdings Inc., Republic Airline Inc. and Shuttle America Corporation, dated as of May 15, 2006.(xviii) |
10.16(g) | Amendment No. 2 to Loan and Security Agreement, by and among Bank of America, N.A., Chautauqua Airlines, Inc., Republic Airways Holdings Inc., Republic Airline Inc. and Shuttle America Corporation, dated as of March 21, 2007.(xxiv) |
10.17 | Amendment No. 1 to the Term Note, dated as of March 27, 2002, by and between Fleet Capital Corporation and Chautauqua Airlines, Inc.(i) |
10.18 | Lease Agreement by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc. dba US Airways Express, dated as of June 17, 1994.(i) |
10.18(a) | First Amendment to Office Lease Agreement, by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc., dated as of July 17, 1998.(i) |
10.18(b) | Second Amendment to Office Lease Agreement, by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc., dated as of October 2, 1998.(i) |
10.18(c) | Third Amendment to Office Lease Agreement, by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc., dated as of November 6, 1998.(i) |
10.18(d) | Fourth Amendment to Office Lease Agreement, by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc., dated as of September 3, 1999.(i) |
10.19 | Letter Agreement by and between the Indianapolis Airport Authority and Chautauqua Airlines, Inc., dated as of July 17, 2000, amending Lease Agreement for office space.(i) |
10.20† | Loan Agreement between Chautauqua Airlines, Inc. and Agência Especial de Financiamento Industrial (FINAME), dated as of December 27, 2001. There are fourteen additional Loan Agreements which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.21 | Aircraft Security Agreement between Chautauqua Airlines, Inc. as Borrower and JPMorgan Chase Bank as Security Trustee, dated as of December 27, 2001. There are fourteen additional Aircraft Security Agreements which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.22 | Security Agreement Supplement No. 1 between Chautauqua Airlines, Inc. as Borrower and JPMorgan Chase Bank as Security Trustee, dated as of January 17, 2002. There are fourteen additional Security Agreement Supplements No. 1 which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.23† | Securities Account Control Agreement among Chautauqua Airlines, Inc. as Debtor, Agência Especial de Financiamento Industrial (FINAME) as Lender, and JPMorgan Chase Bank as Securities Intermediary and Security Deposit Trustee, dated as of December 27, 2001. There are fourteen additional Securities Account Control Agreements which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.24† | Security Deposit Agreement, among Chautauqua Airlines, Inc. as Debtor, Agência Especial de Financiamento Industrial (FINAME) as Lender, and JPMorgan Chase Bank as Securities Intermediary and Security Deposit Trustee, dated as of December 27, 2001. There are fourteen additional Security Deposit Agreements which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.25† | Funding Agreement between Chautauqua Airlines, Inc. and Agência Especial de Financiamento Industrial (FINAME), dated as of December 27, 2001. There are eleven additional Funding Agreements which are substantially identical in all material respects except as indicated on the exhibit.(i) |
10.25(a)† | First Amendment to the Funding Agreement, dated as of June 11, 2002, by and between Chautauqua Airlines, Inc. and Agência Especial de Financiamento Industrial.(i) |
10.26 | Agreement, dated as of June 7, 2002, by and between Republic Airways Holdings Inc. and Delta Air Lines, Inc.(i) |
10.27 | Amendment No. 1 to Agreement between Republic Airways Holdings Inc. and Delta Air Lines, Inc., dated October 1, 2003.(i) |
10.28 | Warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc., dated as of June 7, 2002.(i) |
10.28(a) | Warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc., dated as of February 7, 2003.(i) |
10.28(b) | Warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc., dated as of October 1, 2003.(i) |
10.28(c) | Warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc., dated as of March 10, 2004.(i) |
10.28(d) | Warrant Surrender Agreement, by and between Republic Airways Holdings Inc. and Delta Air Lines, Inc., dated as of December 22, 2004.(iv) |
10.28(e) | Form of Warrant to Purchase Shares of Common Stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc., dated as of December 22, 2004.(iv) |
10.29 | Form of warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc.(i) |
10.30 | Form of warrant to purchase shares of common stock of Republic Airways Holdings Inc. issued to Delta Air Lines, Inc.(i) |
10.31† | Delta Connection Agreement, dated as of June 7, 2002, by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc., and Republic Airways Holdings Inc.(i) |
10.31(a)† | Amendment No. 1 to Delta Connection Agreement, dated as of February 7, 2003, by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc., and Republic Airways Holdings Inc.(i) |
10.31(b)† | Amendment Number Two to Delta Connection Agreement, dated September 30, 2003, by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc. and Republic Airways Holdings Inc.(i) |
10.31(c)† | Amendment Number Three to Delta Connection Agreement, dated March, 2004, by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc. and Republic Airways Holdings Inc.(i) |
10.31(d)† | Amendment No. 4 to Delta Connection Agreement by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc. and Republic Airways Holdings Inc., dated as of August 12, 2004.(iii) |
10.31(e)† | Amendment Number Five to Delta Connection Agreement, as amended, among Delta Air Lines, Inc., Chautauqua Airlines, Inc. and Republic Airways Holdings Inc., dated as of December 22, 2004.(iv) |
10.31(f)† | Amendment Number Six to Delta Connection Agreement, by and among Delta Air Lines, Inc., Chautauqua Airlines, Inc. and Republic Airways Holdings Inc., dated as of March 12, 2007.(xxiii) |
10.31(g)† | Letter Agreement, by and among Delta Airlines, Inc., Republic Airways Holdings Inc., Chautauqua Airlines, Inc. and Shuttle America Corp., dated as of July 28, 2008.(xxxiii) |
10.32 | Amended Promissory Note of Republic Airways Holdings Inc. (FKA Wexford Air Holdings Inc.) (FKA Wexford III Corp.), dated as of May 14, 2003, in favor of WexAir LLC in the principal amount of $20,391,996.04.(i) |
10.33 | Third Amended and Restated Employment Agreement, dated as of November 2, 2010, by and between the Comapny and Bryan K. Bedford. (xliii) |
10.34 | Third Amended and Restated Employment Agreement, dated as of November 2, 2010, by and between the Comapny and Wayne C. Heller. (xlii) |
10.35 | Employment Agreement, dated April 12, 2011, by and between the Company and Timothy P. Dooley. (xlix) |
10.36 | Employment Agreement, dated April 12, 2011, by and between the Company and Lars-Erik Arnell. (xlix) |
10.37 | Office/Shop Space Permit by and between Signature Combs and Chautauqua Airlines, Inc., dated as of January 16, 2001.(i) |
10.38 | Hangar and Office Lease by and between AMR Combs, Inc. and Chautauqua Airlines, Inc., dated as of December 22, 1998.(i) |
10.39† | Purchase Agreement DCT-014/2004, by and between Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of March 19, 2004.(i) |
10.39(a)† | Amendment No. 1 to Purchase Agreement DCT-014/2004, by and between Embraer — Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of April 28, 2004.(ii) |
10.39(b)† | Amendment No. 2 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of dated July 8, 2004.(iii) |
10.39(c)† | Amendment No. 3 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of July 30, 2004.(iii) |
10.39(d)† | Amendment No. 4 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of August 11, 2004.(iii) |
10.39(e)† | Amendment No. 5 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of September 29, 2004.(iii) |
10.39(f)† | Amendment No. 6 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 9, 2004.(viii) |
10.39(g)† | Amendment No. 7 to Purchase Agreement DCT-014/2004 between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of December 23, 2004.(viii) |
10.39(h)† | Amendment No. 8 to Purchase Agreement DCT-014/2004, by and between Embraer—Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of February 28, 2005. (x) |
10.39(i)† | Amendment No. 9 to Purchase Agreement DCT-014/2004, by and between Embraer—Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of March 31, 2005. (x) |
10.39(j)† | Amendment No. 10 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasilicica de Aeronáutica S.A. and Republic Airline Inc., dated as of April 30, 2005. (xiii) |
10.39(k)† | Amendment No. 11 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of August 30, 2005. (xv) |
10.39(l)† | Amendment No. 12 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of October 7, 2005.(xvi) |
10.39(m)† | Amendment No. 13 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of October 18, 2005.(xvi) |
10.39(n)† | Amendment No. 14 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 9, 2005.(xvi) |
10.39(o)† | Amendment No. 15 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of April 24, 2006.(xviii) |
10.39(p)† | Amendment No. 16 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of July 21, 2006.(xix) |
10.39(q)† | Amendment No. 17 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 14, 2006.(xx) |
10.39(r)† | Amendment No. 18 to Purchase Agreement DCT-014/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of January 12, 2007.(xxiii) |
10.39(s)† | Amendment No. 19 to Purchase Agreement DCT-014/2004 by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of June 22, 2007.(xxv) |
10.39(t)† | Amendment No. 20 to Purchase Agreement DCT-014/2004 by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of October 18, 2007.(xxix) |
10.39(u)† | Amendment No. 21 to Purchase Agreement DCT-014/2004 by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of June 5, 2008.(xxxii) |
10.39(v)† | Amendment No. 22 to Purchase Agreement DCT-014/2004 by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of September 5, 2008.(xxxiii) |
10.39(w)† | Amendment No. 23 to Purchase Agreement DCT-014/2004 by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 10, 2008. (xxxiv) |
10.40† | Letter Agreement DCT-015/2004, by and between Republic Airline Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of March 19, 2004.(i) |
10.40(a)† | Amendment No. 1 to Letter Agreement DCT-015/2004, by and between Republic Airline Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of July 8, 2004.(viii) |
10.40(b)† | Amendment No. 2 to Letter Agreement DCT-015/2004, by and between Republic Airline Inc. and Embraer-Empresa Brasileira de Aeronáutica S.A., dated as of December 23, 2004.(viii) |
10.40(c)† | Amendment No. 3 to Letter Agreement DCT-015/2004, by and between Embraer—Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of February 28, 2005.(x) |
10.40(d)† | Amendment No. 4 to Letter Agreement DCT-015/2004, by and between Embraer—Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of April 13, 2005.(x) |
10.40(e)† | Amendment No. 5 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasilicica de Aeronáutica S.A. and Republic Airline Inc., dated as of April 30, 2005.(xiii) |
10.40(f)† | Amendment No. 6 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline, Inc., dated as of October 18, 2005.(xvi) |
10.40(g)† | Amendment No. 7 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline, Inc., dated as of November 9, 2005.(xvi) |
10.40(h)† | Amendment No. 8 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of July 21, 2006.(xix) |
10.40(i)† | Amendment No. 9 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of September 19, 2006.(xx) |
10.40(j)† | Amendment No. 10 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 14, 2006.(xx) |
10.40(k)† | Amendment No. 11 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of May 29, 2007.(xxvi) |
10.40(l)† | Amendment No. 12 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of June 22, 2007.(xxv) |
10.40(m)† | Amendment No. 13 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of October 18, 2007.(xxx) |
10.40(n)† | Amendment No. 14 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of June 5, 2008.(xxxii) |
10.40(o)† | Amendment No. 15 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of September 5, 2008.(xxxiii) |
10.40(p)† | Amendment No. 16 to Letter Agreement DCT-015/2004, by and between Embraer-Empresa Brasileira de Aeronáutica S.A. and Republic Airline inc., dated as of November 10, 2008.(xxxiv) |
10.41† | United Express Agreement, by and between United Air Lines, Inc. and Shuttle America Corp., dated as of December 28, 2006.(xx) |
10.41(a)† | First Amendment to United Express Agreement, by and between United Air Lines, Inc. and Shuttle America Corp., dated as of August 21, 2007.(xxix) |
10.42 | Amendment No. 1 to United Express Agreement, by and between United Air Lines, Inc. and Chautauqua Airlines, Inc., dated as of July 6, 2004.(ii) |
10.43† | Letter Agreement, by and between United Air Lines, Inc. and Republic Airways Holdings Inc., dated as of February 13, 2004.(i) |
10.43(a)† | Letter Agreement, by and between United Air Lines, Inc. and Republic Airways Holdings Inc., dated as of July 7, 2004.(ii) |
10.44 | Lease Agreement, by and between Chautauqua Airlines, Inc. and the Indianapolis Airport Authority, dated as of December 17, 2004.(viii) |
10.45† | Delta Connection Agreement, dated as of January 13, 2005, by and among Delta Air Lines, Inc., Republic Airline Inc. and Republic Airways Holdings Inc.(vi) |
10.45(a)† | Amendment Number One to Delta Connection Agreement, by and among Delta Air Lines, Inc., Shuttle America Corp. (as assignee of Republic Airline Inc.) and Republic Airways Holdings Inc., dated as of March 12, 2007. (xxiii) |
10.45(b)† | Amendment Number Two to Delta Connection Agreement, by and among Delta Airlines, Inc., Shuttle America Corp. (as assignee of Republic Airline Inc.) and Republic Airways Holdings Inc., dated as of August 21, 2007.(xxx) |
10.45(c)† | Letter Agreement, by and among Delta Airlines, Inc., Republic Airways Holdings Inc., Chautauqua Airlines, Inc. and Shuttle America Corp., dated as of March 12, 2007.(xxiii) |
10.45(d)† | Amendment Number Three to Delta Connection Agreement, by and among Delta Airlines, Inc., Shuttle America Corp. (as assignee of Republic Airline, Inc.) and Republic Airways Holdings, Inc., dated as of January 31, 2011. (xlviii) |
10.45(e)†† | Amendment Number Four to Delta Connection Agreement, by and among Delta Airlines, Inc., Shuttle America Corp. (as assignee of Republic Airline, Inc.) and Republic Airways Holdings Inc., dated as of April 26, 2011. |
10.46 | Stock Purchase Agreement, dated May 6, 2005, by and among Republic Airways Holdings, inc., Shuttle America Corporation and Shuttle Acquisition LLC.(ix) |
10.47 | Promissory Note in the principal amount of $1,000,000 dated May 6, 2005, made by Republic Airways Holdings Inc. payable to Shuttle Acquisition LLC.(ix) |
10.48† | Investment Agreement dated as of March 15, 2005 among Wexford Capital LLC, Republic Airways Holdings Inc., US Airways Group, Inc. and US Airways, Inc.(x) |
10.49 | Letter dated June 23, 2005 from US Airways Group, Inc. and US Airways, Inc.(xi) |
10.50 | Amendment No. 3 to United Express Agreement between United Airlines, Inc. and Republic Airline Inc. and Amendment No. 2 to United Express Agreement between United Airlines, Inc. and Chautauqua Airlines, Inc. dated as of June 22, 2005.(xii) |
10.51 | Agreement between Chautauqua Airlines, Inc. and the Flight Attendants in the service of Chautauqua Airlines, Inc. as represented by the International Brotherhood Of Teamsters, AFL-CIO, dated as of September 1, 2005.(xiv) |
10.52(a)† | Republic Jet Service Agreement, by and between US Airways, Inc. and Republic Airline Inc., dated as of September 2, 2005.(xv) |
10.52(b)† | Amendment Number One to Republic Jet Service Agreement, by and between US Airways, Inc. and Republic Airline Inc., dated as of September 21, 2005.(xv) |
10.52(c)† | Second Amendment to Republic Jet Service Agreement, by and between US Airways, Inc. and Republic Airline Inc., dated as of July 21, 2006.(xix) |
10.52(d)† | Third Amendment to Republic Jet Service Agreement, by and between US Airways, Inc. and Republic Airline Inc., dated as of December 19, 2006.(xxi) |
10.53† | Global Aircraft Transaction Agreement, by and between Republic Airways Holdings Inc. and US Airways, Inc., dated as of September 21, 2005.(xv) |
10.54† | Commuter Slot Option Agreement, by and between Republic Airways Holdings Inc. and US Airways, Inc., dated as of September 22, 2005.(xv) |
10.55† | Capacity Purchase Agreement, by and between Continental Airlines, Inc., Republic Airways Holdings Inc. and Chautauqua Airlines, Inc., dated as of July 21, 2006.(xix) |
10.55(a)† | First Amendment to the Capacity Purchase Agreement, by and among Continental Airlines, Inc., Republic Airways Holdings Inc. and Chautauqua Airlines, Inc., dated as of January 8, 2007.(xxiii) |
10.56 | Amended and Restated Secured Super Priority Debtor In Possession Credit Agreement dated April 1, 2009. (xxxiv) |
10.56(a) | Second Amended and Restated Investment Agreement dated August 13, 2009 by and among Frontier Airlines Holdings, Inc. and its subsidiaries, Frontier Airlines, Inc. and Lynx Aviation, Inc. (xxxv) |
10.56(b) † | Credit Agreement among Frontier Airlines, Inc., Republic Airways Holdings Inc., Lynx Aviation, Inc. and Airbus Financial Services, dated as of October 30, 2009. (xxxvi) |
10.57 | Evidence of Transfer of Claim by Republic Airways Holdings Inc. in favor of JPMorgan Chase Bank, N.A., dated as of April 11, 2007.(xxiii) |
10.58 | Stock Purchase Agreement, dated as of March 16, 2007, by and between Republic Airways Holdings Inc. and WexAir LLC.(xxi) |
10.59 | Stock Purchase Agreement, dated as of September 4, 2007, by and between Republic Airways Holdings Inc. and WexAir RJET LLC.(xxvi) |
10.60 | Stock Purchase Agreement, dated as of September 11, 2007, by and between Republic Airways Holdings Inc. and WexAir RJET LLC.(xxvii) |
10.61 | Stock Purchase Agreement, dated as of October 26, 2007, by and between Republic Airways Holdings Inc. and WexAir RJET LLC.(xxvii) |
10.62† | Airline Services Agreement, among Midwest Airlines, Inc., Republic Airline Inc., Midwest Air Group, Inc. (in a limited capacity) and Republic Airways Holdings Inc. (in a limited capacity), dated September 3, 2008.(xxxiii) |
10.62(a) | Amended and Restated Senior Secured Credit Agreement, among Midwest Airlines, Inc., Midwest Air Group, Inc., its subsidiaries, Wells Fargo Bank Northwest, National Association and the lenders party thereto, dated as of September 3, 2008.(xxxiv) |
10.62(b) | Amendment No. 1 to Amended and Restated Senior Secured Credit Agreement, among Midwest Airlines, Inc., Midwest Air Group, Inc., its subsidiaries, Wells Fargo Bank Northwest, National Association and the lenders party thereto, dated as of October 28, 2008.(xxxiv) |
10.62(c)† | Amendment No. 1 to Airline Services Agreement, among Midwest Airlines, Inc., Republic Airline Inc., Midwest Air Group, Inc. and Republic Airways Holdings Inc., dated May 15, 2009. (xxxvii) |
10.62(d)† | Amendment No. 3 to the Amended and Restated Senior Secured Credit Agreement, dated as of September 3, 2008, among Midwest Airlines, Inc., Midwest Air Group, Inc., each of the subsidiaries of Midwest from time to time party thereto, each lender from time to time party thereto (including Republic Airways Holdings Inc.), Wells Fargo Bank Northwest, National Association, as administrative agent and Wells Fargo, as collateral agent, dated as of June 2, 2009. (xxxix) |
10.62(e)† | Amendment No. 2 to the Airline Services Agreement dated as of September 3, 2008 among Midwest Airlines, Inc., Republic Airline Inc., Midwest Air Group, Inc. and Republic Airways Holdings Inc., dated as of June 3, 2009. (xxxix) |
10.62(f) | Agreement and Plan of Merger, by and among Republic Airways Holdings Inc., RJET Acquisition, Inc. and Midwest Air Group, Inc., dated as of June 23, 2009. (xl) |
10.62(g) | Investment Agreement, by and among TPG Midwest US V, LLC, TPG Midwest International V, LLC and Republic Airways Holdings Inc., dated as of June 23, 2009. (xl) |
10.63† | Credit Agreement, by and between US Airways, Inc. and Republic Airways Holdings Inc., dated as of October 20, 2008.(xxxiii) |
10.63(a)† | Amendment to the Credit Agreement, by and between US Airways, Inc. and Republic Airways Holdings Inc., dated as of December 19, 2008.(xxxiv) |
10.64 | Employment Agreement by and between Republic Airways Holdings Inc. and Sean Menke, dated as of October 2, 2009.(xli) |
10.65† | Purchase Agreement No. PA-C006, by and between Bombardier Inc. and Republic Airways Holdings Inc., dated as of February 24, 2010.(xliv) |
10.66† | Credit Agreement by and among Chautauqua Airlines, Inc., Republic Airways Holdings Inc. and certain lenders, dated as of March 26, 2010.(xliv) |
10.67† | Purchase Agreement COM 0190-10, by and between Embraer - Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 3, 2010.(xl) |
10.67(a)†† | Amendment Number One to Purchase Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of March 11, 2011. |
10.67(b)†† | Amendment Number Two to Purchase Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of November 16, 2011. |
10.68† | Letter Agreement COM 0191-10, by and between Embraer - Empresa Brasileira de Aeronáutica S.A. and Republic Airline Inc., dated as of November 3, 2010.(li) |
10.68(a)†† | Amendment Number One to Letter Agreement between Embraer S.A. (formerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of March 11, 2011 |
10.67(b)†† | Amendment Number Two to Letter Agreement between Embraer S.A. (fromerly known as Embraer - Empresa Brasileira de Aeronautica S.A.) and Republic Airline Inc., dated as of November 16, 2011. |
10.70 | Letter of Agreement 67, by and between Frontier Airlines. Inc. and the Frontier pilots represented by the Frontier Airlines Pilot Association, dated as of June 24, 2011. (lii) |
10.71 | Commercial Agreement, by and among Frontier Airlines, Inc., and Republic Airways Holdings Inc. and FAPAInvest LLC, dated as of June 24, 2011. (lii) |
10.71(a) | Amendment Number One to Commercial Agreement by and among Frontier Airlines, Inc., Republic Airways Holdings Inc. and FAPAInvest, LLC, dated as of September 28, 2011. |
10.71(b) | Amendment Number Two to Commercial Agreement by and among Frontier Airlines, Inc., Republic Airways Holdings Inc. and FAPAInvest, LLC, dated as of December 30, 2011. |
10.72 | Flight Attendant Contract 2011-2016, between Frontier Airlines, Inc. and the Association of Flight Attendants - CWA, AFL-CIO, AFL-CIO, dated as of October 14, 2011. (liii) |
10.73 | Employment Transition and Separation Agreement, dated as of November 2, 2010, by and between the Company and Robert Hal Cooper (xlii) |
10.74†† | A320 Family Aircraft Purchase Agreement between Airbus S.A.S and Republic Airways Holdings Inc., dated as of September 30, 2011 |
10.75†† | Amendment No. 25 to A318/A319 Purchase Agreement dated as of March 20, 2000 between Airbus S.A.S and Frontier Airlines, dated as of September 30, 2011. |
21.1 | Subsidiaries of Republic Airways Holdings Inc.(i) |
23.1 | Consent of Deloitte & Touche LLP. |
31.1 | Certification by Bryan K. Bedford pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002. |
31.2 | Certification by Robert H. Cooper pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002. |
32.1 | Certification by Bryan K. Bedford pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
32.2 | Certification by Robert H. Cooper pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
101 | Interactive data file (furnished electronically herewith pursuant to Rule 406T of Regulation S-T.) |
† | Portions of the indicated document have been afforded confidential treatment and have been filed separately with the Commission as required by Rule 406. |
†† | A request for confidential treatment was filed for certain portions of the indicated document. Confidential portions have been omitted and filed separately with the Commission as required by Rule 24b-2. |
(i) | Incorporated by reference to the Registrant’s Registration Statement on Form S-1, File No. 333-84092, which was declared effective on May 26, 2004. |
(ii) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004. |
(iii) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2004. |
(iv) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on December 29, 2004. |
(v) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on December 30, 2004. |
(vi) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on January 20, 2005. |
(vii) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on January 21, 2005. |
(viii) | Incorporated by reference to the Registrant’s Registration Statement on Form S-1, File No. 333-122033, which was declared effective on February 1, 2005. |
(ix) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on May 9, 2005 |
(x) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005. |
(xi) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on June 28, 2005. |
(xii) | Incorporated by reference to the Registrant’s Registration Statement on Form S-3, file No. 333-126357, which was declared effective on July 18, 2005. |
(xiii) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005. |
(xiv) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on September 7, 2005. |
(xv) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2005. |
(xvi) | Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005. |
(xvii) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006. |
(xviii) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006. |
(xix) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2006. |
(xx) | Incorporated by reference to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2006. |
(xxi) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on March 19, 2007. |
(xxii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on March 30, 2007. |
(xxiii) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2007. |
(xxiv) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on June 8, 2007. |
(xxv) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2007. |
(xxvi) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on September 5, 2007. |
(xxvii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on September 12, 2007. |
(xxviii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on October 29, 2007. |
(xxix) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2007. |
(xxx) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on December 10, 2007. |
(xxxi) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed on August 7, 2008. |
(xxxii) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on August 11, 2008. |
(xxxiii) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on November 4, 2008. |
(xxxiv) | Incorporated by reference to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2008. |
(xxxv) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q filed on May 11, 2009. |
(xxxvi) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q filed on November 9, 2009. |
(xxxvii) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed November 5, 2009. |
(xxxviii) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on May 5, 2009. |
(xxxix) | Incorporated by reference to the Registrant’s Quarterly Report on Form 10-Q filed on August 6, 2009. |
(xl) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on June 24, 2009. |
(xli) | Incorporated by reference to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2009. |
(xlii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed November 2, 2010. |
(xliii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed November 2, 2010. |
(xliv) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on May 5, 2010. |
(xlv) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on November 8, 2010. |
(xlvi) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed November 11, 2010. |
(xlvii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed February 7, 2011. |
(xlviii) | Incorporated by reference to the Registrant's Annual Report on Form 10-K filed on March 15, 2011 |
(xlix) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed April 18, 2011 |
(l) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed April 25, 2011 |
(li) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on May 13, 2011. |
(lii) | Incorporated by reference to the Registrant's Current Report on Form 8-K filed July 6, 2011 |
(liii) | Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q filed on November 9, 2011. |
REPUBLIC AIRWAYS HOLDINGS INC. | ||||
(Registrant) | ||||
Dated: | March 15, 2012 | By: | /s/ Bryan K. Bedford | |
Bryan K. Bedford | ||||
Chairman of the Board, Chief Executive Officer and President | ||||
(principal executive officer) |
Signature | Title | Date | ||
/s/ Bryan K. Bedford | ||||
Bryan K. Bedford | Chairman of the Board, Chief Executive Officer and President (Principal Executive Officer) | March 15, 2012 | ||
/s/ Timothy P. Dooley | ||||
Timothy P. Dooley | Senior Vice President and Chief Financial Officer (principal financial and accounting officer) | March 15, 2012 | ||
/s/ Lawrence J. Cohen | ||||
Lawrence J. Cohen | Director | March 15, 2012 | ||
/s/ Neal S. Cohen | ||||
Neal S. Cohen | Director | March 15, 2012 | ||
/s/ Douglas J. Lambert | ||||
Douglas J. Lambert | Director | March 15, 2012 | ||
/s/ Mark L. Plaumann | ||||
Mark L. Plaumann | Director | March 15, 2012 | ||
/s/ Richard P. Schifter | ||||
Richard P. Schifter | Director | March 15, 2012 | ||
/s/ David N. Siegel | ||||
David N. Siegel | Director | March 15, 2012 |
1. | DEFINITIONS |
2. | CONDITIONAL AIRCRAFT |
3. | COUNTERPARTS |
4. | MISCELLANEOUS |
Embraer S.A. | Republic Airline Inc. |
By /s/ Paulo Cesar de Souza de Silva Name: Paulo Cesar de Souza de Silva Title: Executive Vice President Airline Market | By /s/ Bryan K. Bedford Name:Bryan K. Bedford Title: President and CEO |
By/s/ Artur Coutinho Name:Artur Coutinho Title:Executive Vice President of Industrial Operations | Date: Place: |
Date: Place: |
1. | SUBJECT |
2. | DELIVERY |
Firm Aircraft | Contractual Delivery Date |
1 | [*] |
2 | [*] |
3 | [*] |
4 | [*] |
5 | [*] |
6 | [*] |
3. | PAYMENT |
4. | TERMINATION |
5. | RIGHT TO [*] |
6. | [*] |
7. | [** Confidential] |
8. | AIRCRAFT SUPPORT |
“2.2.1 | Aircraft Publications: Embraer shall supply, at no additional charge to Buyer, [*] sets of operational and maintenance publications (as defined in Exhibit 1 hereto), plus [*] operational set (as defined in Exhibit 1 hereto) on board of each Aircraft to be delivered to Buyer, in the English language. The list of manuals is specified in Exhibit “1” to this Attachment "B". Such publications are issued under the applicable specification and are [*]. The revision service for these publications is provided, [*] and the software license fee [*] and [*]. |
a. | Embraer shall identify in its sole discretion, and provide a technical support representative (“TSR”) [*] |
9. | COUNTERPARTS |
10. | MISCELLANEOUS |
Embraer S.A. | Republic Airline Inc. |
By/s/ Mauro Kern Junior Name:Mauro Kern Junior Title:Vice-President Executive Engenharia e Tecnologia | By/s/ Thomas Duffy Jr. Name:Thomas Duffy Jr. Title: Vice President Technical Services |
By/s/ Jose Luis D'Avila Molina Name:Jose Luis D'Avila Molina Title:Vice President Contracts Commercial Aviation | Date:12 Nov 11 Place:Indianapolis, IN |
Date:16/Nov/2011 Place:San Jose dos Campos, Brazil |
1. | CHANGES |
a. | In Section 1.3(f) of the Letter Agreement, [ Confidential] is changed to [*]. |
b | In Section 8(b) of the Letter Agreement, [*] is changed to [*] each time it appears. |
c. | In [*] Section 9.1 of the Letter Agreement, on line three [*] is changed to [*], and on line four [*] is changed to [*]. |
d. | In Section 1.2 to Schedule 2 to the Letter Agreement, [*] is changed to [*] each time it appears and [*] is changed to [*]. |
2. | COUNTERPARTS |
3. | MISCELLANEOUS |
Embraer S.A. | Republic Airline Inc. |
By /s/ Paulo Cesar de Souza de Silva Name: Paulo Cesar de Souza de Silva Title: Executive Vice President Airline Market | By /s/ Bryan K. Bedford Name: Bryan K. Bedford Title: President and CEO |
By/s/ Artur Coutinho Name:Artur Coutinho Title:Executive Vice President of Industrial Operations | Date: Place: |
Date: Place: |
1. | PARTS ADDITIONAL SUPPORT |
2. | AIRCRAFT PURCHASE PRICE |
3. | ADDITIONAL CUSTOMER SUPPORT SERVICES |
4. | [*] ASSISTANCE |
5. | [*] SUPPORT |
6. | [*] SPECIAL SUPPORT |
7. | [*] |
8. | COUNTERPARTS |
9. | MISCELLANEOUS |
Embraer S.A. | Republic Airline Inc. |
By/s/ Mauro Kern Junior Name:Mauro Kern Junior Title:Vice-President Executive Engenharia e Tecnologia | By/s/ Thomas Duffy Jr. Name:Thomas Duffy Jr. Title: Vice President Technical Services |
By/s/ Jose Luis D'Avila Molina Name:Jose Luis D'Avila Molina Title:Vice President Contracts Commercial Aviation | Date:12 Nov 11 Place:Indianapolis, IN |
Date:16/Nov/2011 Place:Sao Jose dos Campos, Brazil |
1 | The following steps shall be taken no later than December 31, 2011 (except that the steps in Paragraph C.5.a shall be taken no later than January 31, 2012) so long as this Agreement is in effect:” |
EXHIBITS | TITLES |
Exhibit A-1 | A320 STANDARD SPECIFICATION Appendix 1 to Exhibit A-1 A320 AIRCRAFT SPECIFICATION CHANGE NOTICES |
Exhibit A-2 | A319 STANDARD SPECIFICATION Appendix 1 to Exhibit A-2 A319 AIRCRAFT SPECIFICATION CHANGE NOTICES |
Exhibit B-1 | FORM OF SPECIFICATION CHANGE NOTICE |
Exhibit B-2 | FORM OF MANUFACTURER’S SPECIFICATION CHANGE NOTICE |
Exhibit C | PART 1 SELLER PRICE REVISION FORMULA PART 2 CFM INTERNATIONAL PRICE REVISION FORMULA CPI 186.92 |
Exhibit D | FORM OF CERTIFICATE OF ACCEPTANCE |
Exhibit E | FORM OF BILL OF SALE |
Exhibit F | SERVICE LIFE POLICY – LIST OF ITEMS |
Exhibit G | TECHNICAL DATA INDEX |
Exhibit H | MATERIAL SUPPLY AND SERVICES |
1 - | SALE AND PURCHASE |
2 - | SPECIFICATION |
2.1 | Aircraft Specification |
2.1.1 | The A320 Aircraft will be manufactured in accordance with the A320 Standard Specification, as modified or varied prior to the date of this Agreement by the Specification Change Notices listed in Appendix 1 to Exhibit A-1 which includes the Irrevocable SCNs. |
2.1.2 | New Engine Option |
2.1.2.1 | The Seller is currently developing a new engine option (the “New Engine Option” or “NEO”), applicable to the Aircraft. The specification of the NEO Aircraft shall be derived from the current Standard Specification and based on the new Propulsion Systems, as set forth in Clause 2.3 below, and Sharklets, combined with the required airframe structural adaptations, as well as Aircraft systems and software adaptations required to operate such NEO Aircraft. The foregoing is currently reflected in the Irrevocable SCNs listed in Appendix 1 to Exhibits A-1 and Appendix 1 to Exhibit A-2, the implementation of which is hereby irrevocably accepted by the Buyer. |
2.1.2.2 | The New Engine Option shall modify the design weights of the Standard Specification as follows: |
A319 | A320 | |
MLW | [] | [*] |
MZFW | [*] | [*] |
2.2 | Specification Amendment |
2.2.1 | Specification Change Notice |
2.2.2 | Development Changes |
2.2.2.1 | Manufacturer Specification Changes Notices |
(i) | The Specification may be amended by the Seller through a Manufacturer Specification Change Notice (“MSCN”), which will be substantially in the form set out in Exhibit B-2 hereto, or by other appropriate means, and will set out the MSCN’s Aircraft embodiment rank as well as, in detail, the particular change to be made to the Specification and the effect, if any, of such change on performance, weight, Base Price of the Aircraft, Delivery Date of the Aircraft affected thereby and interchangeability or replaceability requirements under the Specification. |
(ii) | Except when the MSCN is necessitated by an Aviation Authority directive or by equipment obsolescence, in which case the MSCN will be accomplished without requiring the Buyer’s consent, if the MSCN adversely affects the performance, weight, Base Price, Delivery Date of the Aircraft affected thereby or the interchangeability or replaceability requirements under the Specification, the Seller will notify the Buyer of a reasonable period of time during which the Buyer must accept or reject such MSCN. If the Buyer does not notify the Seller of the rejection of the MSCN within such period, the MSCN will be deemed accepted by the Buyer and the corresponding modification will be accomplished. |
2.2.2.2 | If the Seller revises the Specification to incorporate Development Changes which have no adverse effect on any of the elements identified in Clause 2.2.2.1, such Development Change will be performed by the Seller without the Buyer’s consent. |
2.2.2.3 | The Seller may at its discretion notify Seller from time to time that certain items, which are currently BFE in the Specification, shall be deemed to be seller-furnished equipment (“SFE”) and the parties agree that, upon such notice, such BFE items shall thereafter be excluded from the provisions of Clauses 2.2.2.1 (ii) and 2.2.2.2 above and shall be considered instead SFE and thereafter chargeable to the Buyer. |
2.3 | Propulsion System |
2.3.1 | Each A320 Airframe will be equipped with a set of two (2) CFM International LEAP-X1A26 engines (such set, an “A320 Propulsion System”). |
2.4 | Milestones |
2.4.1 | Customization Milestones Chart |
2.4.2 | Contractual Definition Freeze |
3 - | PRICE |
3.1 | Base Price of the Aircraft |
3.1.1 | Base Price of the A320 Airframe |
3.1.1.1 | In respect of the A320 Aircraft, the Base Price of the A320 Airframe is the sum of the following base prices: |
3.1.1.2 | The Base Price of the A320 Airframe has been established in accordance with the [*] (the “Base Period”). |
3.1.2 | Base Price of the A320 Propulsion System |
3.1.2.1 | The Base Price of a set of two (2) CFM International LEAP-X engines (the “LEAP-X1A26 Engines”) is: |
3.1.3 | Base Price of the A319 Airframe |
3.1.3.1 | The Base Price of the A319 Airframe has been established in accordance with the [*] (the “Base Period”). |
3.1.4 | Base Price of the A319 Propulsion System |
3.1.4.1 | The Base Price of a set of two (2) CFM International CFM LEAP-X1A24 model engines for the A319 Aircraft (the “LEAP-X1A24 Engines”) is the sum of: |
3.2 | Final Price of the Aircraft |
(i) | the Base Price of the Airframe, as adjusted to the applicable Delivery Date of such Aircraft in accordance with Clause 4.1; |
(ii) | the aggregate of all increases or decreases to the Base Price of the Airframe as agreed in any Specification Change Notice or part thereof applicable to the Airframe subsequent to the date of this Agreement as adjusted to the Delivery Date of such Aircraft in accordance with Clause 4.1; |
(iii) | the Propulsion System Reference Price as adjusted to the Delivery Date of in accordance with Clause 4.2; |
(iv) | the aggregate of all increases or decreases to the Propulsion System Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion System subsequent to the date of this Agreement as adjusted to the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement relating to the Aircraft and/or any other written agreement between the Buyer and the Seller relating to the Aircraft. |
4 - | PRICE REVISION |
4.1 | Seller Price Revision Formula |
4.2 | Propulsion System Price Revision |
4.2.1 | The Propulsion System Reference Price and SCNs relating to the Propulsion System are subject to revision up to and including the Delivery Date in accordance with the Propulsion System Price Revision Formula. |
4.2.2 | The Reference Price of the Propulsion System, the prices of the related equipment and the Propulsion System Price Revision Formula are based on information received from the Propulsions Systems Manufacturer and are subject to amendment by the Propulsion System Manufacturer at any time prior to Delivery. If the Propulsion System Manufacturer makes any such amendment, the amendment will be deemed to be incorporated into this Agreement and the Reference Price of the Propulsion System, the prices of the related equipment and the Propulsion System Price Revision Formula will be adjusted accordingly. The Seller agrees to notify the Buyer promptly upon receiving notice of any such amendment from the Propulsion System Manufacturer. |
5 - | PAYMENT TERMS |
5.1 | Seller’s Account |
5.2 | [*] |
5.3 | Predelivery Payments |
5.3.1 | Predelivery Payments are nonrefundable (although amounts equal to Predelivery Payments may be paid to the Buyer pursuant to Clause 10 or 11) and will be paid by the Buyer to the Seller for the Aircraft. |
5.3.2 | The Predelivery Payment Reference Price for an Aircraft to be delivered in calendar year T is determined in accordance with the following formula: |
5.3.3 | Predelivery Payments will be paid according to the following schedule: |
Payment Date | [*] | |
[*] | [*] | [*] |
[*] | ||
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] | [*] |
[*] | [*] |
5.4 | Payment of Balance of the Final Price of the Aircraft |
5.5 | Taxes |
5.6 | Application of Payments |
5.7 | Setoff Payments |
5.8 | Overdue Payments |
5.8.1 | If any payment due to the Seller from the Buyer is not received by the Seller on the date or dates due, the Seller will have the right to claim from the Buyer, and the Buyer will [*] |
5.8.2 | If any Predelivery Payment is not received by the date on which it is due, the Seller, in addition to any other rights and remedies available to it, will be under no obligation to deliver any Aircraft remaining to be delivered under this Agreement within such Aircraft’s Scheduled Delivery Month(s). Upon receipt of the full amount of all such overdue Predelivery Payments, together with interest on such Predelivery Payments in accordance with Clause 5.8.1, the Seller will provide the Buyer with new Scheduled Delivery Months for the affected Aircraft, subject to the Seller’s commercial and industrial constraints. |
5.9 | Proprietary Interest |
5.10 | Payment in Full |
5.11 | Other Charges |
6 - | MANUFACTURE PROCEDURE - INSPECTION |
6.1 | Manufacture Procedures |
6.2 | Inspection |
6.2.1 | The Buyer or its duly authorized representatives (the “Buyer’s Inspector(s)”) will be entitled to inspect the manufacture of the Airframe and all materials and parts obtained by the Seller for the manufacture of the Airframe (the “Inspection”) on the following terms and conditions; |
(i) | any Inspection will be conducted pursuant to the Seller’s system of inspection and the relevant Airbus Procedures, as developed under the supervision of the relevant Aviation Authority and generally applicable to commercial airline customers of Seller for A320 family aircraft; |
(ii) | the Buyer’s Inspector(s) will have access to such relevant technical documentation solely to the extent reasonably necessary for the purpose of the Inspection; |
(iii) | any Inspection and any related discussions with the Seller and other relevant personnel by the Buyer’s Inspector(s) will be at reasonable times during business hours and will take place in the presence of the relevant inspection department personnel of the Seller; |
(iv) | the Inspections will be performed in a manner not to unduly delay or hinder the manufacture or assembly of the Aircraft or the performance of this Agreement by the Seller or any other work in progress at the Manufacture Facilities. |
6.2.2 | Location of Inspections |
6.3 | Seller’s Service for Buyer’s Inspector(s) |
7 - | CERTIFICATION |
7.1 | Type Certification |
7.2 | Export Certificate of Airworthiness |
7.3 | Specification Changes before Aircraft Ready for Delivery |
7.3.1 | If, any time before the date on which an Aircraft is Ready for Delivery, any law, rule or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law, rule or regulation is issued by the EASA that requires any change to the Specification for the purposes of obtaining the Export Certificate of Airworthiness (a “Change in Law”), the Seller will make the required modification and the parties hereto will sign an SCN pursuant to Clause 2.2.1. |
7.3.2 | The Seller will as far as practicable, but at its sole discretion and without prejudice to Clause 7.3.3(ii), take into account the information available to it concerning any proposed law, rule or regulation or interpretation that could become a Change in Law, in order to minimize the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective before the applicable Aircraft is Ready for Delivery. |
7.3.3 | The cost of implementing the required modifications referred to in Clause 7.3.1 will be: |
7.3.4 | Notwithstanding the provisions of Clause 7.3.3, if a Change in Law relates to an item of BFE or to the Propulsion System the costs related thereto will [] and the Seller will have no obligation with respect thereto. |
7.4 | Specification Changes after Aircraft Ready For Delivery |
8 - | TECHNICAL ACCEPTANCE |
8.1 | Technical Acceptance Process |
8.1.1 | Prior to Delivery, the Aircraft will undergo a technical acceptance process developed by the Seller (the “Technical Acceptance Process”). Completion of the Technical Acceptance Process will demonstrate the satisfactory functioning of the Aircraft and will be deemed to demonstrate compliance with the Specification. Should it be established that the Aircraft does not comply with the Technical Acceptance Process requirements, the Seller will without hindrance from the Buyer be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the Aircraft to such further Technical Acceptance Process as is necessary to demonstrate the elimination of the non-compliance. |
8.1.2 | The Technical Acceptance Process will: |
(i) | commence on a date notified by the Seller to the Buyer [] notice prior thereto, |
(ii) | take place at the Delivery Location, |
(iii) | be carried out by the personnel of the Seller, and |
(iv) | include a technical acceptance flight that will [*] (the “Technical Acceptance Flight”), and |
8.2 | Buyer’s Attendance |
8.2.1 | The Buyer is entitled to elect to attend the Technical Acceptance Process. |
8.2.2 | If the Buyer elects to attend the Technical Acceptance Process, the Buyer: |
(i) | will comply with the reasonable requirements of the Seller, with the intention of completing the Technical Acceptance Process within [*] after its commencement, and |
(ii) | may have a maximum of [*] of its representatives (no more than [*] of whom will have access to the cockpit at any one time) accompany the Seller’s representatives on the Technical Acceptance Flight, during which the Buyer’s representatives will comply with the instructions of the Seller’s representatives. |
8.2.3 | If the Buyer does not attend or fails to cooperate in the Technical Acceptance Process, the Seller will be entitled to complete the Technical Acceptance Process and the Buyer will be deemed to have accepted that the Technical Acceptance Process has been satisfactorily completed, in all respects. |
8.3 | Certificate of Acceptance |
8.4 | Finality of Acceptance |
8.5 | Aircraft Utilization |
9 - | DELIVERY |
9.1 | Delivery Schedule |
Aircraft Rank | Scheduled Delivery | ||
Quarter | Year | ||
1 | A320 Aircraft | [] | [*] |
2 | A319 Aircraft | [*] | [*] |
3 | A320 Aircraft | [*] | [*] |
4 | A320 Aircraft | [*] | [*] |
5 | A319 Aircraft | [*] | [*] |
6 | A320 Aircraft | [*] | [*] |
7 | A320 Aircraft | [*] | [*] |
8 | A320 Aircraft | [*] | [*] |
9 | A320 Aircraft | [*] | [*] |
10 | A320 Aircraft | [*] | [*] |
11 | A320 Aircraft | [*] | [*] |
12 | A320 Aircraft | [*] | [*] |
13 | A320 Aircraft | [*] | [*] |
14 | A320 Aircraft | [*] | [*] |
15 | A320 Aircraft | [*] | [*] |
16 | A320 Aircraft | [*] | [*] |
17 | A320 Aircraft | [*] | [*] |
18 | A320 Aircraft | [*] | [*] |
19 | A320 Aircraft | [*] | [*] |
20 | A320 Aircraft | [*] | [*] |
21 | A320 Aircraft | [*] | [*] |
22 | A320 Aircraft | [*] | [*] |
23 | A320 Aircraft | [*] | [*] |
24 | A320 Aircraft | [*] | [*] |
25 | A320 Aircraft | [*] | [*] |
26 | A320 Aircraft | [*] | [*] |
27 | A320 Aircraft | [*] | [*] |
28 | A320 Aircraft | [*] | [*] |
29 | A320 Aircraft | [*] | [*] |
30 | A320 Aircraft | [*] | [*] |
31 | A320 Aircraft | [*] | [*] |
32 | A320 Aircraft | [*] | [*] |
33 | A320 Aircraft | [] | [*] |
Aircraft Rank | Scheduled Delivery | ||
34 | A320 Aircraft | [*] | [*] |
35 | A320 Aircraft | [*] | [*] |
36 | A320 Aircraft | [*] | [*] |
37 | A320 Aircraft | [*] | [*] |
38 | A320 Aircraft | [*] | [*] |
39 | A320 Aircraft | [*] | [*] |
40 | A320 Aircraft | [*] | [*] |
41 | A320 Aircraft | [*] | [*] |
42 | A320 Aircraft | [*] | [*] |
43 | A320 Aircraft | [*] | [*] |
44 | A320 Aircraft | [*] | [*] |
45 | A320 Aircraft | [*] | [*] |
46 | A320 Aircraft | [*] | [*] |
47 | A320 Aircraft | [*] | [*] |
48 | A320 Aircraft | [*] | [*] |
49 | A320 Aircraft | [*] | [*] |
50 | A320 Aircraft | [*] | [*] |
51 | A320 Aircraft | [*] | [*] |
52 | A320 Aircraft | [*] | [*] |
53 | A320 Aircraft | [*] | [*] |
54 | A320 Aircraft | [*] | [*] |
55 | A320 Aircraft | [*] | [*] |
56 | A320 Aircraft | [*] | [*] |
57 | A320 Aircraft | [*] | [*] |
58 | A320 Aircraft | [*] | [*] |
59 | A320 Aircraft | [*] | [*] |
60 | A320 Aircraft | [*] | [*] |
61 | A320 Aircraft | [*] | [*] |
62 | A320 Aircraft | [*] | [*] |
63 | A319 Aircraft | [*] | [*] |
64 | A319 Aircraft | [*] | [*] |
65 | A319 Aircraft | [*] | [*] |
66 | A319 Aircraft | [*] | [*] |
67 | A319 Aircraft | [*] | [*] |
68 | A319 Aircraft | [*] | [*] |
69 | A319 Aircraft | [*] | [*] |
70 | A319 Aircraft | [*] | [*] |
71 | A319 Aircraft | [*] | [*] |
72 | A319 Aircraft | [*] | [*] |
73 | A319 Aircraft | [*] | [*] |
74 | A319 Aircraft | [*] | [*] |
75 | A319 Aircraft | [*] | [*] |
76 | A319 Aircraft | [] | [*] |
77 | A319 Aircraft | [*] | [*] |
78 | A319 Aircraft | [*] | [*] |
Aircraft Rank | Scheduled Delivery | ||
79 | A319 Aircraft | [*] | [*] |
80 | A319 Aircraft | [*] | [*] |
9.2 | Delivery Process |
9.2.1 | The Buyer will, when the Aircraft is Ready for Delivery, pay the Balance of the Final Price, take Delivery of the Aircraft and remove the Aircraft from the Delivery Location. |
9.2.2 | The Seller will deliver and transfer title to the Aircraft to the Buyer free and clear of all encumbrances (except for any liens or encumbrances created by or on behalf of the Buyer) provided that the Balance of the Final Price of such Aircraft has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance has been signed and delivered to the Seller pursuant to Clause 8.3. The Seller will provide the Buyer with a bill of sale in the form of Exhibit E (the “Bill of Sale”) and such other documentation confirming transfer of title and receipt of the Final Price of the Aircraft as may reasonably be requested by the Buyer. Title to, property in and risk of loss of or damage to the Aircraft will transfer to the Buyer contemporaneously with the delivery by the Seller to the Buyer of such Bill of Sale. |
9.2.3 | If the Buyer fails to (i) deliver the signed Certificate of Acceptance with respect to an Aircraft to the Seller when required pursuant to Clause 8.3, or (ii) pay the Balance of the Final Price of such Aircraft to the Seller and take Delivery of the Aircraft, then the Buyer will be deemed to have rejected Delivery wrongfully when such Aircraft was duly tendered to the Buyer hereunder. If such a deemed rejection arises, then in addition to the remedies of Clause 5.8.1, (a) the Seller will retain title to such Aircraft and (b) the Buyer will indemnify and hold the Seller harmless against any and all costs (including but not limited to any parking, storage, and insurance costs) and consequences resulting from the Buyer’s rejection (including but not limited to risk of loss of or damage to such Aircraft), it being understood that the Seller will be under no duty to the Buyer to store, park, insure or otherwise protect such Aircraft. These rights of the Seller will be in addition to the Seller’s other rights and remedies in this Agreement. |
9.2.4 | If the Buyer fails to remove the Aircraft from the Delivery Location, then, without prejudice to the Seller’s other rights and remedies under this Agreement or at law, the provisions of Clause 9.2.3 (b) shall apply. |
9.3 | Flyaway |
9.3.1 | The Buyer and the Seller will cooperate to obtain any licenses that may be required by the Aviation Authority of the Delivery Location for the purpose of exporting the Aircraft. |
9.3.2 | All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery will be borne by the Buyer. The Buyer will make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights. |
10 - | EXCUSABLE DELAY AND TOTAL LOSS |
10.1 | Scope of Excusable Delay |
10.2 | Consequences of Excusable Delay |
(i) | the Seller will notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; |
(ii) | the Seller will not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer; |
(iii) | the Seller will not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; |
(iv) | the Seller will as soon as practicable after the removal of the cause of such delay resume performance of its obligations under this Agreement and in particular will notify the Buyer of the revised Scheduled Delivery Month. |
10.3 | Termination on Excusable Delay |
10.3.1 | If any Delivery is delayed as a result of an Excusable Delay for a period of more than [] after the last day of the Scheduled Delivery Month, then either party may terminate this Agreement with respect to the affected Aircraft, by giving written notice to the other party [*] after the [*] period. However, the Buyer will not be entitled to terminate this Agreement pursuant to this Clause 10.3.1 if the Excusable Delay is caused directly or indirectly by the action or inaction of the Buyer. |
10.3.2 | If the Seller advises the Buyer in its notice of a revised Scheduled Delivery Month pursuant to Clause 10.2.1(iv) that there will be a delay in Delivery of an Aircraft of more than [*] of the Scheduled Delivery Month, then either party may terminate this Agreement with respect to the affected Aircraft. Termination will be made by giving written notice to the other party [*] after the Buyer’s receipt of the notice of a revised Scheduled Delivery Month. |
10.3.3 | If this Agreement is not terminated under the terms of Clause 10.3.1 or 10.3.2, then the Seller will be entitled to reschedule Delivery. The Seller will notify the Buyer of the new Scheduled Delivery Month after the [*] referred to in Clause 10.3.1 or 10.3.2, and this new Scheduled Delivery Month will be deemed to be an amendment to the applicable Scheduled Delivery Month in Clause 9.1. |
10.4 | Total Loss, Destruction or Damage |
(i) | the Buyer notifies the Seller within [*] of the date of receipt of the Seller’s notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Seller’s notice; and |
(ii) | the parties execute an amendment to this Agreement recording the change in the Scheduled Delivery Month. |
10.5 | Termination Rights Exclusive |
10.6 | Remedies |
11 - | INEXCUSABLE DELAY |
11.1 | Renegotiation |
11.2 | Termination |
11.3 | Remedies |
12 - | WARRANTIES AND SERVICE LIFE POLICY |
12.1 | Standard Warranty |
12.1.1 | Nature of Warranty |
12.1.1.1 | For the purpose of this Agreement the term “Warranted Part” will mean any Seller proprietary component, equipment, accessory or part, which is installed on an Aircraft at Delivery thereof and |
(i) | which is manufactured to the detailed design of the Seller or a subcontractor of the Seller and |
12.1.1.2 | Subject to the conditions and limitations as hereinafter provided for and except as provided for in Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and each Warranted Part will at Delivery to the Buyer be free from defects: |
(i) | in material; |
(ii) | in workmanship, including without limitation processes of manufacture; |
(iii) | in design (including without limitation the selection of materials) having regard to the state of the art at the date of such design; and |
(iv) | arising from failure to conform to the Specification, except to those portions of the Specification relating to performance or where it is expressly stated that they are estimates or approximations or design aims. |
12.1.2 | Exclusions |
(i) | any defect in the Seller’s workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items, that invalidates any applicable warranty from such manufacturers, will constitute a defect in workmanship for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1.2(ii); and |
(ii) | any defect inherent in the Seller’s design of the installation, in consideration of the state |
12.1.3 | Warranty Period |
12.1.4 | Limitations of Warranty |
12.1.4.1 | The Buyer’s remedy and the Seller’s obligation and liability under Clauses 12.1.1 and 12.1.2 are limited to, at the Seller’s expense and option, the repair, replacement or correction of any Warranted Part which is defective (or to the supply of modification kits, rectifying the defect), together with a credit to the Buyer’s account with the Seller of an amount equal to the mutually agreed direct labor costs expended in performing the removal and reinstallation thereof on the Aircraft at the labor rate defined in Clause 12.1.7.5. |
12.1.4.2 | In the event of a defect covered by Clauses 12.1.1.2(iii), 12.1.1.2(iv) and 12.1.2(ii) becoming apparent within the Warranty Period, the Seller shall also, if so requested by the Buyer in writing, correct such defect in any Aircraft which has not yet been delivered to the Buyer, [*] |
12.1.4.3 | Cost of Inspection |
(i) | such inspections are recommended by a Seller Service Bulletin to be performed within the Warranty Period; |
(ii) | the reimbursement will not apply for any inspections performed as an alternative to accomplishing corrective action as recommended by the Seller prior to the date of such inspection. |
(iii) | the labor rate for the reimbursement will be the Inhouse Warranty Labor Rate, and |
(iv) | the manhours used to determine such reimbursement will not exceed the Seller’s estimate of the manhours required for such inspections. |
12.1.5 | Warranty Claim Requirements |
(i) | the defect having become apparent within the Warranty Period; |
(ii) | the Buyer having filed a warranty claim within [] of discovering the defect; |
(iii) | [*] |
(iv) | the Seller having received a Warranty Claim complying with the provisions of Clause 12.1.6 below. |
12.1.6 | Warranty Administration |
12.1.6.1 | Claim Determination |
12.1.6.2 | Transportation Costs |
12.1.6.3 | Return of an Aircraft |
12.1.6.4 | On Aircraft Work by the Seller |
12.1.6.5 | Warranty Claim Substantiation |
(i) | description of defect and any action taken, if any, |
(ii) | date incident and/or removal date, |
(iii) | description of Warranted Part claimed to be defective, |
(iv) | part number, |
(v) | serial number (if applicable), |
(vi) | position on Aircraft, |
(vii) | total flying hours or calendar time, as applicable, at the date of defect appearance, |
(viii) | time since last shop visit at the date of defect appearance, |
(ix) | Manufacturer Serial Number of the Aircraft and/or its registration, |
(x) | Aircraft total flying hours and/or number of landings at the date of defect appearance, |
(xi) | Warranty Claim number, |
(xii) | date of Warranty Claim, |
(xiii) | Delivery Date of Aircraft or Warranted Part to the Buyer, |
12.1.6.6 | Replacements |
(i) | when the Seller has possession of a returned Aircraft, component, accessory, equipment or part to which the Buyer has title, the Seller will have such responsibility therefor as is chargeable by law to a bailee for hire, but the Seller will not be liable for loss of use; and |
(ii) | title to and risk of loss of a returned component, accessory, equipment or part will pass to the Seller upon shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor. |
12.1.6.7 | Rejection |
12.1.6.8 | Inspection |
12.1.7 | Inhouse Warranty |
12.1.7.1 | Seller’s Authorization |
12.1.7.2 | Conditions for Seller’s Authorization |
(i) | provided the Buyer notifies the Seller Representative of its intention to perform Inhouse |
(ii) | if adequate facilities and qualified personnel are available to the Buyer; |
(iii) | if repairs are performed in accordance with the Seller’s Technical Data or written instructions; and |
(iv) | only to the extent specified by the Seller, or, in the absence of such specification, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause 12.1.10. |
12.1.7.3 | Seller’s Rights |
12.1.7.4 | Inhouse Warranty Claim Substantiation |
(i) | a report of technical findings with respect to the defect, |
(ii) | for parts required to remedy the defect: |
(iii) | detailed number of labor hours, |
(iv) | Inhouse Warranty Labor Rate, |
(v) | total claim value. |
12.1.7.5 | [] |
12.1.7.6 | [*] Limitation |
12.1.7.7 | Scrapped Material |
12.1.8 | Standard Warranty in case of Pooling or Leasing Arrangements |
12.1.9 | Warranty for Corrected, Replaced or Repaired Warranted Parts |
12.1.10 | Accepted Industry Standard Practices Normal Wear and Tear |
(i) | any Aircraft or component, equipment, accessory or part thereof, which has been repaired, altered or modified after Delivery, except by the Seller or in a manner approved by the Seller; |
(ii) | any Aircraft or component, equipment, accessory or part thereof, which has been operated in a damaged state; or |
(iii) | any component, equipment, accessory and part from which the trademark, name, part or serial number or other identification marks have been removed. |
12.1.11 | DISCLAIMER OF SELLER LIABILITY |
12.2 | Seller Service Life Policy |
(i) | “Item” means any item listed in Exhibit F; |
(ii) | “Failure” means a breakage or defect that can reasonably be expected to occur on a fleetwide basis and which materially impairs the utility of the Item. |
12.2.1 | Periods and Seller’s Undertakings |
(a) | design and furnish to the Buyer a correction for such Item with a Failure and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or |
(b) | replace such Item. |
12.2.2 | Seller’s Participation in the Costs |
12.2.3 | General Conditions and Limitations |
12.2.3.1 | The undertakings set forth in this Clause 12.2 will be valid after the period of the Seller’s warranty applicable to an Item under Clause 12.1. |
12.2.3.2 | The Buyer’s remedies and the Seller’s obligations and liabilities under this Service Life Policy are subject to the prior compliance by the Buyer with the following conditions: |
(i) | the Buyer will maintain log books and other historical records with respect to each Item, adequate to enable the Seller to determine whether the alleged Failure is covered by this Service Life Policy and, if so, to define the portion of the costs to be borne by the Seller in accordance with Clause 12.2.3; |
(ii) | the Buyer will keep the Seller informed of any significant incidents relating to an Aircraft, howsoever occurring or recorded; |
(iii) | the Buyer will comply with the conditions of Clause 12.1.10; |
(iv) | the Buyer will implement specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs will be as compatible as possible with the Buyer’s operational requirements and will be carried out at the Buyer’s expense. Reports relating thereto will be regularly furnished to the |
(v) | the Buyer will report any breakage or defect in a Item in writing to the Seller [*] after such breakage or defect becomes apparent, whether or not said breakage or defect can reasonably be expected to occur in any other aircraft, and the Buyer will have provided to the Seller sufficient detail on the breakage or defect to enable the Seller, acting reasonably, to determine whether said breakage or defect is subject to this Service Life Policy. |
12.2.3.3 | Except as otherwise provided for in this Clause 12.2, any claim under this Service Life Policy will be administered as provided for in, and will be subject to the terms and conditions of, Clause 12.1.6. |
12.2.3.4 | In the event of the Seller having issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary modification kit [] established by the Seller. If such a kit is so offered to the Buyer, then, to the extent of such Failure and any Failures that could ensue therefrom, the validity of the Seller’s commitment under this Clause 12.2 will be subject to the Buyer incorporating such modification in the relevant Aircraft, as promulgated by the Seller and in accordance with the Seller’s instructions, within a reasonable time. |
12.2.3.5 | THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER’S OBLIGATION UNDER THIS CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED FOR IN THIS CLAUSE 12.2. THE BUYER’S SOLE REMEDY AND RELIEF FOR THE NON-PERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY WILL BE IN A CREDIT FOR GOODS AND SERVICES (NOT INCLUDING AIRCRAFT), LIMITED TO THE AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY AND TO WHICH SUCH NON-PERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS CLAUSE 12.2 IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN CLAUSE 12.5, THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY. |
12.3 | Supplier Warranties and Service Life Policies |
12.3.1 | Definitions |
12.3.1.1 | “Supplier” means any supplier of Supplier Parts. |
12.3.1.2 | “Supplier Part” means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof and for which there exists a Supplier Product Support Agreement. For the sake of clarity, Propulsion System and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by suppliers with whom the Seller has no existing enforceable warranty agreements are not Supplier Parts. |
12.3.1.3 | “Supplier Product Support Agreements” means agreements between the Seller and Suppliers, as described in Clause 17.1.2, containing enforceable and transferable warranties and, in the case of landing gear suppliers, service life policies for selected structural landing gear elements. |
12.3.2 | Supplier’s Default |
12.3.2.1 | In the event of any Supplier, under any standard warranty obtained by the Seller pursuant to Clause 12.3.1, [] (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, then Clause 12.1 will apply to the extent (a) the same would have been applicable had such Supplier Part been a Warranted Part, and (b) the Seller can reasonably perform said Supplier’s obligations, except that the Supplier’s warranty period as indicated in the Supplier Product Support Agreement will apply. |
12.3.2.2 | In the event of any Supplier, under any Supplier Service Life Policy obtained by the Seller pursuant to Clause 12.3.1, [] and (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, then Clause 12.2 will apply to the extent (a) the same would have been applicable had such Supplier Item been listed in Exhibit F, Seller Service Life Policy, and (b) the Seller can reasonably perform said Supplier’s obligations, except that the Supplier’s Service Life Policy period as indicated in the Supplier Product Support Agreement will apply. |
12.3.2.3 | At the Seller’s request, the Buyer will assign to the Seller, and the Seller will be subrogated to, all of the Buyer’s rights against the relevant Supplier with respect to and arising by reason of such default and will provide reasonable assistance to enable the Seller to enforce the rights so assigned. |
12.4 | Interface Commitment |
12.4.1 | Interface Problem |
12.4.2 | Seller’s Responsibility |
12.4.3 | Supplier’s Responsibility |
12.4.4 | Joint Responsibility |
12.4.5 | General |
12.4.5.1 | All requests under this Clause 12.4 will be directed to both the Seller and the affected Supplier. |
12.4.5.2 | Except as specifically set forth in this Clause 12.4, this Clause will not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Agreement. |
12.4.5.3 | All reports, recommendations, data and other documents furnished by the Seller to the Buyer |
12.5 | Exclusivity of Warranties |
(I) | ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE; |
(II) | ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(III) | ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT; |
(IV) | ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN; |
(V) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE; |
(VI) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY; |
(VII) | ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR: |
(A) | LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT; |
(B) | LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT; |
(C) | LOSS OF PROFITS AND/OR REVENUES; |
(D) | ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE. |
12.6 | Duplicate Remedies |
12.7 | Negotiated Agreement |
(i) | the Specification has been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of aircraft used in public transportation and as such is a professional within the same industry as the Seller; |
(ii) | this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer; and |
(iii) | the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the waiver, release and renunciation by the Buyer set forth in Clause 12.5. |
12.8 | Disclosure to Third Party Entity |
12.9 | Transferability |
13 - | PATENT AND COPYRIGHT INDEMNITY |
13.1 | Indemnity |
13.1.1.1 | Subject to the provisions of Clause 13.2.3, the Seller will indemnify the Buyer from and against any damages, costs and/or expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement or claim of infringement by the Airframe (or any part or software installed therein at Delivery) of: |
(i) | any British, French, German, Spanish or U.S. patent; |
(ii) | any patent issued under the laws of any other country in which the Buyer may lawfully operate the Aircraft, provided that: |
(a) | from the time of design of such Airframe, accessory, equipment and/or part and until infringement claims are resolved, such country and the flag country of the Aircraft are each a party to the Chicago Convention on International Civil Aviation of December 7, 1944, and are each fully entitled to all benefits of Article 27 thereof, |
(b) | from such time of design and until infringement claims are resolved, such country and the flag country of the Aircraft are each a party to the International Convention for the Protection of Industrial Property of March 20, 1883 (“Paris Convention”); |
(iii) | in respect of computer software installed on the Aircraft, any copyright, provided that the Seller’s obligation to indemnify will be limited to infringements in countries which, at the time of infringement, are members of The Berne Union and recognize computer software as a “work” under the Berne Convention. |
13.1.2 | Clause 13.1.1 will not apply to |
(i) | Buyer Furnished Equipment or Propulsion System; or |
(ii) | parts not the subject of a Supplier Product Support Agreement; or |
(iii) | software not developed or created by the Seller. |
13.1.3 | In the event that the Buyer, due to circumstances contemplated in Clause 13.1.1, is prevented from using the Aircraft (whether by a valid judgment of a court of competent jurisdiction or by a settlement arrived at between claimant, Seller and Buyer), the Seller will at its discretion and expense either: |
(i) | procure for the Buyer the right to use the Aircraft to the Buyer; or |
(ii) | replace the infringing part of the Aircraft as soon as possible with a non-infringing substitute complying in all other respects with the requirements of this Agreement. |
13.2 | Administration of Patent and Copyright Indemnity Claims |
13.2.1 | If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer will: |
(i) | forthwith notify the Seller giving particulars thereof; |
(ii) | furnish to the Seller all data, papers and records within the Buyer’s control or possession relating to such patent or claim; |
(iii) | refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) will prevent the Buyer from paying such sums as may be required in order to obtain the release of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice; |
(iv) | fully co-operate with, and render all such assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim; |
(v) | act in such a way as to mitigate damages, costs and expenses and / or reduce the amount of royalties which may be payable. |
13.2.2 | The Seller will be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Seller’s opinion, it deems proper. |
13.2.3 | The Seller’s liability hereunder will be conditional upon the strict and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright. |
14 - | TECHNICAL DATA AND SOFTWARE SERVICES |
14.1 | Scope |
14.1.1 | The Technical Data will be supplied in the English language using the aeronautical terminology in common use. |
14.1.2 | Range, form, type, format, quantity and delivery schedule of the Technical Data to be provided under this Agreement are outlined in Exhibit G hereto. |
14.2 | Aircraft Identification for Technical Data |
14.2.1 | For those Technical Data that are customized to the Buyer’s Aircraft, the Buyer agrees to the allocation of fleet serial numbers (“Fleet Serial Numbers”) in the form of block of numbers selected in the range from 001 to 999. |
14.2.2 | The sequence will not be interrupted unless two (2) different Propulsion Systems or two (2) different models of Aircraft are selected. |
14.2.3 | The Buyer will indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the delivery schedule set forth in Clause 9.1 [] before the Scheduled Delivery Month of the first Aircraft. Neither the designation of such Fleet Serial Numbers nor the subsequent allocation of the Fleet Serial Numbers to Manufacturer Serial Numbers for the purpose of producing certain customized Technical Data will constitute any property, insurable or other interest of the Buyer in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement. |
(i) | Aircraft Maintenance Manual, |
(ii) | Illustrated Parts Catalogue, |
(iii) | Trouble Shooting Manual, |
(iv) | Aircraft Wiring Manual, |
(v) | Aircraft Schematics Manual, |
(vi) | Aircraft Wiring Lists. |
14.3 | Integration of Equipment Data |
14.3.1 | Supplier Equipment |
14.3.2 | Buyer Furnished Equipment |
14.3.2.1 | The Seller will introduce Buyer Furnished Equipment data for Buyer Furnished Equipment that is installed on the Aircraft by the Seller (hereinafter “BFE Data”) into the customized Technical Data, [] to the Buyer for the initial issue of the Technical Data provided at or before Delivery of the first Aircraft, provided such BFE Data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.6. |
14.3.2.2 | The Buyer will supply the BFE Data to the Seller at [*] prior to the Scheduled Delivery Month of the first Aircraft. |
14.3.2.3 | The Buyer will supply the BFE Data to the Seller in English and will be established in compliance with the then applicable revision of ATA iSpecification 2200 (iSpec 2200), Information Standards for Aviation Maintenance. |
14.3.2.4 | The Buyer and the Seller will agree on the requirements for the provision to the Seller of BFE Data for “on-aircraft maintenance”, such as but not limited to timeframe, media and format in which the BFE Data will be supplied to the Seller, in order to manage the BFE Data integration process in an efficient, expeditious and economic manner. |
14.3.2.5 | The BFE Data will be delivered in digital format (SGML) and/or in Portable Document Format (PDF), as agreed between the Buyer and the Seller. |
14.4 | Supply |
14.4.1 | Technical Data will be supplied on-line and/or off-line, as set forth in Exhibit G hereto. |
14.4.2 | The Buyer will not receive any credit or compensation for any unused or only partially used Technical Data supplied pursuant to this Clause 14. |
14.4.3 | Delivery |
14.4.3.1 | For Technical Data provided off-line, such Technical Data and corresponding revisions will be sent to up to two (2) addresses as indicated by the Buyer. |
14.4.3.2 | Technical Data provided off-line will be delivered by the Seller at the Buyer’s named place of destination under DDU conditions. |
14.4.3.3 | The Technical Data will be delivered according to a mutually agreed schedule to correspond with the Deliveries of Aircraft. The Buyer will provide [] notice when requesting a change to such delivery schedule. |
14.4.3.4 | It will be the responsibility of the Buyer to coordinate and satisfy local Aviation Authorities’ requirements with respect to Technical Data. Reasonable quantities of such Technical Data will be supplied by the Seller at no charge to the Buyer at the Buyer’s named place of destination. |
14.5 | Revision Service |
14.6 | Service Bulletins (SB) Incorporation |
14.7 | Technical Data Familiarization |
14.8 | Customer Originated Changes (COC) |
14.9 | AirN@v Family products |
14.9.1 | The Technical Data listed herebelow are provided on DVD and include integrated software (hereinafter together referred to as “AirN@v Family”). |
14.9.2 | The AirN@v Family covers several Technical Data domains, reflected by the following AirN@v Family products: |
(i) | AirN@v / Maintenance, |
(ii) | AirN@v / Planning, |
(iii) | AirN@v / Repair, |
(iv) | AirN@v / Workshop, |
(v) | AirN@v / Associated Data, |
(vi) | AirN@v / Engineering. |
14.9.3 | Further details on the Technical Data included in such products are set forth in Exhibit G. |
14.9.4 | The licensing conditions for the use of AirN@v Family integrated software will be set forth in a separate agreement to be executed by the parties [], the “End-User License Agreement for Airbus Software”. |
14.9.5 | The revision service and the license to use AirN@v Family products will be [*] Revision Service Period. At the end of such Revision Service Period, [*]. |
14.10 | On-Line Technical Data |
14.10.1 | The Technical Data defined in Exhibit G as being provided on-line will be made available to the Buyer through the Airbus customer portal AirbusWorld (“AirbusWorld”) as set forth in a separate agreement to be executed by the parties the [*] |
14.10.2 | Access to Technical Data through AirbusWorld will be [*] Revision Service Period. |
14.10.3 | Access to AirbusWorld will be subject to the General Terms and Conditions of Access to and Use of AirbusWorld (hereinafter the “GTC”), as set forth in a separate agreement to be executed by the parties the [*]. |
14.10.4 | The list of the Technical Data provided on-line may be extended from time to time. For any Technical Data which is or becomes available on-line, the Seller reserves the right to eliminate other formats for the concerned Technical Data. |
14.10.5 | Access to AirbusWorld will be [] |
14.10.6 | For the sake of clarification, Technical Data accessed through AirbusWorld - which access will be covered by the terms and conditions set forth in the GTC – will remain subject to the conditions of this Clause 14. |
14.11 | Waiver, Release and Renunciation |
(I) | ANY WARRANTY AGAINST HIDDEN DEFECTS; |
(II) | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
(III) | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE; |
(IV) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR IMPUTED; AND |
(V) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, |
14.12 | Proprietary Rights |
14.12.1 | All proprietary rights relating to Technical Data, including but not limited to patent, design and copyrights, will remain with the Seller and/or its Affiliates, as the case may be. |
14.12.2 | Whenever this Agreement and/or any Technical Data provides for manufacturing by the Buyer, the consent given by the Seller will not be construed as any express or implicit endorsement or approval whatsoever of the Buyer or of the manufactured products. The supply of the Technical Data will not be construed as any further right for the Buyer to design or manufacture any Aircraft or part thereof, including any spare part. |
14.13 | Performance Engineer’s Program |
14.13.1 | In addition to the Technical Data provided under Clause 14, the Seller will provide to the Buyer Software Services, which will consist of the Performance Engineer’s Programs (“PEP”) for the Aircraft type covered under this Agreement. Such PEP is composed of software components and databases, and its use is subject to the license conditions set forth in the End-User License Agreement for Airbus Software. |
14.13.2 | Use of the PEP will be limited to one (1) copy to be used on the Buyer’s computers for the purpose of computing performance engineering data. The PEP is intended for use on ground only and will not be placed or installed on board the Aircraft. |
14.13.3 | The license to use the PEP and the revision service will be [] Revision Service Period as set forth in Clause 14.5. |
14.13.4 | At the end of such PEP Revision Service Period, the PEP will be provided to the Buyer at the standard commercial conditions set forth in the Seller’s then current Customer Services Catalog. |
14.14 | Future Developments |
14.15 | Confidentiality |
14.15.1 | This Clause, the Technical Data, the Software Services and their content are designated as confidential. All such Technical Data and Software Services are provided to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller, except as permitted therein or pursuant to any government or legal requirement imposed upon the Buyer. |
14.15.2 | If the Seller authorizes the disclosure of this Clause or of any Technical Data or Software Services to third parties either under this Agreement or by an express prior written authorization or, specifically, where the Buyer intends to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a “Third Party”), the Buyer will notify the Seller of such intention prior to any disclosure of this Clause and/or the Technical Data and/or the Software Services to such Third Party. |
14.16 | Transferability |
15 - | SELLER REPRESENTATIVE SERVICES |
15.1 | Customer Support Representative(s) |
15.1.1 | The Seller will [*] to the Buyer the services of Seller customer support representative(s), as defined in Appendix A to this Clause 15 (each a “Seller Representative”), at the Buyer’s main base or such other locations as the parties may agree. |
15.1.2 | In providing the services as described herein, any Seller Representatives, or any Seller employee(s) providing services to the Buyer hereunder, are deemed to be acting in an advisory capacity only and at no time will they be deemed to be acting as Buyer’s employees, contractors or agents, either directly or indirectly. |
15.1.3 | The Seller will provide to the Buyer an annual written accounting of the consumed man-months and any remaining man-month balance from the [*] defined in Appendix A to this Clause 15. Such accounting will be deemed final and accepted by the Buyer unless the Seller receives written objection from the Buyer [*] of receipt of such accounting. |
15.1.4 | In the event of a need for Aircraft On Ground (“AOG”) technical assistance after the end of the assignment referred to in Appendix A to this Clause 15, the Buyer will have non-exclusive access to: |
(i) | AIRTAC (Airbus Technical AOG Center); |
(ii) | The Seller Representative network closest to the Buyer’s main base. A list of contacts of the Seller Representatives closest to the Buyer’s main base will be provided to the Buyer. |
15.1.5 | Should the Buyer request Seller Representative services [*] specified in Appendix A to this Clause 15, the Seller may provide such additional services subject to terms and conditions to be mutually agreed. |
15.1.6 | The Seller will cause similar services to be provided by representatives of the Propulsion System Manufacturer and Suppliers, when necessary and applicable. |
15.2 | Buyer’s Support |
15.2.1 | From the date of arrival of the first Seller Representative and for the duration of the assignment, the Buyer will [*] a suitable, lockable office, conveniently located with respect |
15.2.2 | [*] |
15.2.3 | [*] |
15.2.4 | Should the Buyer request any Seller Representative referred to in Clause 15.1 above to travel on business to a city other than his usual place of assignment, the Buyer will be responsible for all related transportation costs and expenses. |
15.2.5 | Absence of an assigned Seller Representative during normal statutory vacation periods will be covered by other seller representatives on the same conditions as those described in Clause 15.1.4, and such services will be counted against the total [*] provided in Appendix A to this Clause 15. |
15.2.6 | The Buyer will assist the Seller in obtaining from the civil authorities of the Buyer’s country those documents that are necessary to permit the Seller Representative to live and work in the Buyer’s country. |
15.2.7 | The Buyer will [*] |
15.3 | Withdrawal of the Seller Representative |
15.4 | Indemnities |
16 - | TRAINING SUPPORT AND SERVICES |
16.1 | General |
16.1.1 | This Clause 16 sets forth the terms and conditions for the supply of training support and services for the Buyer’s personnel to support the Aircraft operation. |
16.1.2 | The range, quantity and validity of training to be [] under this Agreement are covered in Appendix A to this Clause 16. |
16.1.3 | Scheduling of training courses covered in Appendix A to this Clause 16 will be mutually agreed during a training conference (the “Training Conference”) that will be held [*] prior to Delivery of the first Aircraft. |
16.2 | Training Location |
16.2.1 | The Seller will provide training at its training center in [*] “Seller’s Training Center” and collectively the “Seller’s Training Centers”). |
16.2.2 | If the unavailability of facilities or scheduling difficulties make training by the Seller at any Seller’s Training Center impractical, the Seller will ensure that the Buyer is provided with such training at another location designated by the Seller. |
16.2.2.1 | Upon the Buyer’s request, the Seller may also provide certain training at a location other than the Seller’s Training Centers, including one of the Buyer’s bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In such event, all additional charges listed in Clauses 16.5.2 and 16.5.3 will be [*]. |
16.2.2.2 | If the Buyer requests training at a location as indicated in Clause 16.2.2.1 and requires such training to be an Airbus approved course, the Buyer undertakes that the training facilities will be approved prior to the performance of such training. The Buyer will, as necessary and with adequate time prior to the performance of such training, provide access to the training facilities set forth in Clause 16.2.2.1 to the Seller’s and the competent Aviation Authority’s representatives for approval of such facilities. |
16.3 | Training Courses |
16.3.1 | Training courses will be as described in the Seller’s customer services catalog (the “Seller’s Customer Services Catalog”). The Seller’s Customer Services Catalog also sets forth the minimum and maximum number of trainees per course. |
16.3.2 | The following terms and conditions will apply to training performed by the Seller: |
(i) | Training courses will be the Seller’s standard courses as described in the Seller’s Customer Services Catalog valid at the time of execution of the course. The Seller will be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses. For the avoidance of doubt, such training equipment does not include provision of aircraft for the purpose of performing training. |
(ii) | The training equipment and the training curricula used for the training of flight, cabin and maintenance personnel will not be fully customized but will be configured in order to obtain the relevant Aviation Authority’s approval and to support the Seller’s training programs. |
(iii) | Training data and documentation for trainees receiving the training at the Seller’s Training Centers will be []. Training data and documentation will be marked “FOR TRAINING ONLY” and as such are supplied for the sole and express purpose of training; training data and documentation will not be revised. |
16.3.3 | When the Seller’s training courses are provided by the Seller’s instructors (individually an “Instructor” and collectively “Instructors”) the Seller will deliver a Certificate of Recognition or a Certificate of Course Completion (each a “Certificate”) or an attestation (an “Attestation”), as applicable, at the end of any such training course. Any such Certificate or Attestation will not represent authority or qualification by any Aviation Authority but may be presented to such Aviation Authority in order to obtain relevant formal qualification. |
16.3.3.1 | Should the Buyer wish to exchange any of the training courses provided under Appendix A to this Clause 16, the Buyer will place a request for exchange to this effect with the Seller. The Buyer may exchange, subject to the Seller’s confirmation, the [*] under Appendix A to this Clause 16 as follows: |
(i) | flight operations training courses as listed under Article 1 of Appendix A to this Clause 16 may be exchanged for any flight operations training courses described in the Seller’s Customer Services Catalog current at the time of the Buyer’s request; |
(ii) | maintenance training courses as listed under Article 3 of Appendix A to this Clause 16 may be exchanged for any maintenance training courses described in the Seller’s Customer Services Catalog current at the time of the Buyer’s request; |
(iii) | should any one of the [*] thereunder (flight operations or maintenance) have been fully drawn upon, the Buyer will be entitled to exchange for flight operations or maintenance training courses as needed against the remaining allowances. |
16.3.3.2 | Should the Buyer use none or only part of the training to be provided pursuant to this Clause 16, no compensation or non-training credit of any nature will be provided. |
16.3.3.3 | Should the Buyer decide to cancel or reschedule a training course, fully or partially, and irrespective of the location of the training, a minimum advance notification of [*] prior to the relevant training course start date is required. |
16.3.3.4 | If the notification occurs [*] prior to such training, a [*] of such training will be, as applicable, either deducted from the training allowance defined in Appendix A to this Clause 16 or invoiced at the Seller’s then applicable price. |
16.3.3.5 | If the notification occurs [*] prior to such training, [*] defined in Appendix A to this Clause 16 or [*]. |
16.3.3.6 | All courses exchanged under Clause 16.3.3.1 will remain subject to the provisions of this Clause 16.3.3. |
16.4 | Prerequisites and Conditions |
16.4.1 | Training will be conducted in English and all training aids used during such training will be written in English using common aeronautical terminology. |
16.4.2 | The Buyer hereby acknowledges that all training courses conducted pursuant to this Clause 16 are “Standard Transition Training Courses” and not “Ab Initio Training Courses”. |
16.4.3 | Trainees will have the prerequisite knowledge and experience specified for each course in the Seller’s Customer Services Catalog. |
16.4.3.1 | The Buyer will be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees. |
16.4.3.2 | The Seller reserves the right to verify the trainees’ proficiency and previous professional experience. |
16.4.3.3 | The Seller will provide to the Buyer during the Training Conference an Airbus Pre-Training Survey for completion by the Buyer for each trainee. |
16.4.3.4 | If the Seller determines at any time during the training that a trainee lacks the required level, following consultation with the Buyer, such trainee will be withdrawn from the program or, upon the Buyer’s request, the Seller may be consulted to direct the above mentioned trainee(s), if possible, to any other required additional training, which will be at the Buyer’s expense. |
16.4.4 | The Seller will in no case warrant or otherwise be held liable for any trainee’s performance as a result of any training provided. |
16.5 | Logistics |
16.5.1 | Trainees |
16.5.1.1 | Living and travel expenses for the Buyer’s trainees will be [*]. |
16.5.1.2 | It will be the responsibility of the Buyer to make all necessary arrangements relative to authorizations, permits and/or visas necessary for the Buyer’s trainees to attend the training courses to be provided hereunder. Rescheduling or cancellation of courses due to the Buyer’s failure to obtain any such authorizations, permits and/or visas will be subject to the provisions of Clauses 16.3.3.3 thru 16.3.3.5. |
16.5.2 | Training at External Location - Seller’s Instructors |
16.5.2.1 | In the event of training being provided at the Seller’s request at any location other than the Seller’s Training Centers, as provided for in Clause 16.2.2, the expenses of the Seller’s Instructors will be [*]. |
16.5.2.2 | In the event of training being provided by the Seller’s Instructor(s) at any location other than the Seller’s Training Centers at the Buyer’s request, the Buyer will reimburse the Seller for all the expenses related to the assignment of such Seller Instructors and the performance of their duties as aforesaid. |
16.5.2.3 | [*] |
16.5.2.4 | [*] |
16.5.2.5 | Buyer’s Indemnity |
16.5.3 | Training Material and Equipment Availability - Training at External Location |
16.6 | Flight Operations Training |
16.6.1 | Flight Crew Training Course |
16.6.2 | Base Flight Training |
16.6.2.1 | The Buyer will provide at its own cost its delivered Aircraft, or any other aircraft it operates, for any base flight training, which will consist of [*] per pilot, performed in accordance with the related Airbus training course definition (the “Base Flight Training”). |
16.6.2.2 | Should it be necessary to ferry the Buyer’s delivered Aircraft to the location where the Base Flight Training will take place, the additional flight time required for the ferry flight to and/or from the Base Flight Training field will not be deducted from the Base Flight Training time. |
16.6.2.3 | If the Base Flight Training is performed outside of the zone where the Seller usually performs such training, the ferry flight to the location where the Base Flight Training will take place |
16.6.3 | Flight Crew Line Initial Operating Experience |
16.6.4 | Type Specific Cabin Crew Training Course |
16.6.5 | Training on Aircraft |
16.7 | Performance / Operations Courses |
16.8 | Maintenance Training |
16.8.1 | The Seller will provide maintenance training for the Buyer’s ground personnel as further set forth in Appendix A to this Clause 16. |
16.8.2 | Practical Training on Aircraft |
16.9 | Supplier and Propulsion System Manufacturer Training |
16.10 | Proprietary Rights |
16.11 | Confidentiality |
16.12 | Transferability |
16.13 | Indemnities and Insurance |
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training (standard transition course) |
1.2 | Flight Crew Line Initial Operating Experience |
1.3 | Type Specific Cabin Crew Training Course |
1.4 | Airbus Pilot Instructor Course (APIC) |
2 | PERFORMANCE / OPERATIONS COURSE(S) |
3 | MAINTENANCE TRAINING |
3.1 | The Seller will provide to the Buyer [] of maintenance training [*] for the Buyer’s personnel. |
3.2 | The Seller will provide to the Buyer [*] Engine Run-up courses. |
4 | TRAINEE DAYS ACCOUNTING |
4.1 | For instruction at the Seller’s Training Centers: [*] of instruction for [*]. The number of trainees originally registered at the beginning of the course will be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Seller’s Training Centers: [*] of instruction by [*] Seller Instructor [*], except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Seller’s Training Center(s), [*] of instruction by [*] Seller Instructor [*] as indicated in the Seller’s Customer Services Catalog. |
4.4 | For practical training, whether on training devices or on aircraft, [*] of instruction by [*] Seller Instructor [*] |
17 - | EQUIPMENT SUPPLIER PRODUCT SUPPORT |
17.1 | Equipment Supplier Product Support Agreements |
17.1.1 | The Seller has obtained enforceable and transferable Supplier Product Support Agreements from Suppliers of Supplier Parts, the benefit of which is hereby accepted by the Buyer. Said Supplier Product Support Agreements become enforceable by Buyer from the date of this Agreement and for as long as Buyer is an operator of Airbus aircraft. |
17.1.2 | These agreements are based on the World Airlines Suppliers Guide, are made available to the Buyer through the SPSA Application, and include Supplier commitments as contained in the Supplier Product Support Agreements which include the following provisions: |
17.1.2.1 | Technical data and manuals required to operate, maintain, service and overhaul the Supplier Parts will be prepared in accordance with the applicable provisions of ATA Specification including revision service and be published in the English language. The Seller will recommend that a software user guide, where applicable, be supplied in the form of an appendix to the Component Maintenance Manual. Such data will be provided in compliance with the applicable ATA Specification; |
17.1.2.2 | Warranties and guarantees, including standard warranties. In addition, landing gear Suppliers will provide service life policies for selected structural landing gear elements; |
17.1.2.3 | Training to ensure efficient operation, maintenance and overhaul of the Supplier Parts for the Buyer’s instructors, shop and line service personnel; |
17.1.2.4 | Spares data in compliance with ATA iSpecification 2200, initial provisioning recommendations, spare parts and logistic service including routine and expedite deliveries; |
17.1.2.5 | Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier Parts as well as required tooling and spares provisioning. |
17.2 | Supplier Compliance |
17.3 | Nothing in this Clause 17 shall be construed to prevent or limit the Buyer from entering into direct negotiations with a Supplier with respect to different or additional terms and conditions applicable to Suppliers Parts selected by the Buyer to be installed on the Aircraft. |
17.4 | Familiarization Training |
18 - | BUYER FURNISHED EQUIPMENT |
18.1 | Administration |
18.1.1 | In accordance with the Specification, the Seller will install those items of equipment that are identified in the Specification as being furnished by the Buyer (“Buyer Furnished Equipment” or “BFE”), provided that the BFE and the supplier of such BFE (the “BFE Supplier”) are referred to in the Airbus BFE Product Catalog valid at the time the BFE Supplier is selected. |
18.1.2 | Notwithstanding the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to install BFE manufactured by a supplier who is not referred to in the Airbus BFE Product Catalog, the Buyer will so inform the Seller and the Seller will conduct a feasibility study of the Buyer’s request, in order to consider approving such supplier, provided that such request is compatible with the Seller’s industrial planning and the associated Scheduled Delivery Month for the Buyer’s Aircraft. In addition, it is a prerequisite to such approval that the considered supplier be qualified by the Seller’s Aviation Authorities to produce equipment for installation on civil aircraft. Any approval of a supplier by the Seller under this Clause 18.1.2 will be [] The Buyer will cause any BFE supplier approved under this Clause 18.1.2 (each an “Approved BFE Supplier”) to comply with the conditions set forth in this Clause 18 and specifically Clause 18.2. |
18.1.3 | The Seller will advise the Buyer of the dates by which, in the planned release of engineering for the Aircraft, the Seller requires from each BFE Supplier a written detailed engineering definition encompassing a Declaration of Design and Performance (the “BFE Engineering Definition”). The Seller will reasonably provide to the Buyer and/or the BFE Supplier(s), the interface documentation necessary for development of the BFE Engineering Definition. |
18.1.4 | The Seller will also provide in due time to the Buyer a schedule of dates and the shipping addresses for delivery of the BFE and, where requested by the Seller, additional spare BFE to permit installation in the Aircraft in a timely manner. The Buyer will provide, or cause the BFE Suppliers to provide, the BFE by such dates in a serviceable condition. The Buyer will, upon the Seller’s request, provide to the Seller dates and references of all BFE purchase |
18.1.5 | Without prejudice to the Buyer’s obligations hereunder, in order to facilitate the development of the BFE Engineering Definition, the Seller will organize meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to participate in such meetings and to provide adequate technical and engineering expertise to reach decisions within a timeframe specified by the Seller. |
(i) | to monitor the BFE Suppliers and ensure that they will enable the Buyer to fulfil its obligations, including but not limited to those set forth in the Customization Milestone Chart; |
(ii) | that, should a timeframe, quality or other type of risk be identified at a given BFE Supplier, the Buyer will allocate resources to such BFE Supplier so as not to jeopardize the industrial schedule of the Aircraft; |
(iii) | for major BFE, including, but not being limited to, seats, galleys and IFE (“Major BFE”) to participate on a mandatory basis in the specific meetings that take place between BFE Supplier selection and BFE delivery, namely: |
(a) | Preliminary Design Review (“PDR”), |
(b) | Critical Design Review (“CDR”); |
(iv) | to attend the First Article Inspection (“FAI”) for the first shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer will delegate the FAI to the BFE Supplier thereof and confirmation thereof will be supplied to the Seller in writing; |
(v) | to attend the Source Inspection (“SI”) that takes place at the BFE Supplier’s premises prior to shipping, for each shipset of all Major BFE. Should the Buyer not attend such SI, the Buyer will delegate the SI to the BFE Supplier and confirmation thereof will be supplied to the Seller in writing. Should the Buyer not attend the SI, the Buyer will be deemed to have accepted the conclusions of the BFE Supplier with respect to such SI. |
18.1.6 | The BFE will be imported into France or into Germany by the Buyer under a suspensive |
18.2 | Applicable Requirements |
(i) | be manufactured by either a BFE Supplier referred to in the Airbus BFE Product Catalog or an Approved BFE Supplier, and |
(ii) | meet the requirements of the applicable Specification of the Aircraft, and |
(iii) | be delivered with the relevant certification documentation, including but not limited to the DDP, and |
(iv) | comply with the BFE Engineering Definition, and |
(v) | comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, and |
(vi) | be approved by the Aviation Authority issuing the Export Certificate of Airworthiness and by the Buyer’s Aviation Authority for installation and use on the Aircraft at the time of Delivery of the Aircraft, and |
(vii) | not infringe any patent, copyright or other intellectual property right of the Seller or any third party, and |
(viii) | not be subject to any legal obligation or other encumbrance that may prevent, hinder or delay the installation of the BFE in the Aircraft and/or the Delivery of the Aircraft. |
18.3 | Buyer’s Obligation and Seller’s Remedies |
18.3.1 | Any delay or failure by the Buyer or the BFE Suppliers in: |
(i) | complying with the foregoing warranty or in providing the BFE Engineering Definition or field service mentioned in Clause 18.1.4, or |
(ii) | furnishing the BFE in a serviceable condition at the requested delivery date, or |
(iii) | obtaining any required approval for such BFE equipment under the above mentioned Aviation Authorities’ regulations, |
18.3.2 | In addition, in the event of any delay or failure mentioned in 18.3.1 above, the Seller may: |
(i) | select, purchase and install equipment similar to the BFE at issue, in which event the Final Price of the affected Aircraft will also be increased by the purchase price of such equipment plus reasonable costs and expenses incurred by the Seller for handling charges, transportation, insurance, packaging and, if so required and not already provided for in the Final Price of the Aircraft, for adjustment and calibration; or |
(ii) | if the BFE is delayed by more than ten (10) days beyond, or is not approved within ten (10) days of the dates specified in Clause 18.1.4, deliver the Aircraft without the installation of such BFE, notwithstanding applicable terms of Clauses 7 and 8, and the Seller will thereupon be relieved of all obligations to install such equipment. |
18.4 | Title and Risk of Loss |
18.5 | Disposition of BFE Following Termination |
18.5.1 | [] |
18.5.2 | The Buyer will cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 and will be responsible for all costs incurred by the Seller in removing and facilitating |
18.5.3 | The Seller will notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Seller’s request, the Buyer will undertake to remove such items from the Seller’ facility [*] of the date of such notice. The Buyer will have no claim against the Seller for damage, loss or destruction of any item of BFE removed from the Aircraft and not removed from Seller’s facility within such period. |
18.5.4 | The Buyer will have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being removed from the Aircraft, provided that the Seller will use reasonable care in such removal. |
18.5.5 | The Buyer will grant the Seller title to any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable. |
19 - | INDEMNITIES AND INSURANCE |
19.1 | Seller’s Indemnities |
(i) | claims for injuries to, or death of, the Seller’s directors, officers, agents or employees, or loss of, or damage to, property of the Seller or its employees when such Losses occur during or are incidental to either party’s exercise of any right or performance of any obligation under this Agreement, and |
(ii) | claims for injuries to, or death of, third parties, or loss of, or damage to, property of third parties, occurring during or incidental to the Technical Acceptance Flights. |
19.2 | Buyer’s Indemnities |
(i) | claims for injuries to, or death of, the Buyer’s directors, officers, agents or employees, or loss of, or damage to, property of the Buyer or its employees, when such Losses occur during or are incidental to either party’s exercise of any right or performance of any obligation under this Agreement, and |
(ii) | claims for injuries to, or death of, third parties, or loss of, or damage to, property of third parties, occurring during or incidental to (a) the provision of Seller Representatives services under Clause 15 including services performed on board the aircraft or (b) the provision of Aircraft Training Services to the Buyer. |
19.3 | Notice and Defense of Claims |
19.4 | Insurance |
19.4.1 | For all Aircraft Training Services, to the extent of the Buyer’s undertaking set forth in Clause 19.2, the Buyer will: |
(i) | cause the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents and employees to be named as additional insured under the Buyer’s Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils (such insurance to include the AVN 52E Extended Coverage Endorsement Aviation Liabilities or any further Endorsement replacing AVN 52E as may be available as well as any excess coverage in respect of War and Allied Perils Third Parties Legal Liabilities Insurance), and |
(ii) | with respect to the Buyer’s Hull All Risks and Hull War Risks insurances and Allied Perils, cause the insurers of the Buyer’s hull insurance policies to waive all rights of subrogation against the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents, employees and insurers. |
19.4.2 | Any applicable deductible will be borne by the Buyer. The Buyer will furnish to the Seller, not less than seven (7) Business Days prior to the start of any Aircraft Training Services, certificates of insurance, in English, evidencing the limits of liability cover and period of insurance coverage in a form acceptable to the Seller from the Buyer’s insurance broker(s), certifying that such policies have been endorsed as follows: |
(i) | under the Comprehensive Aviation Legal Liability Insurances, the Buyer’s policies are primary and non-contributory to any insurance maintained by the Seller, |
(ii) | such insurance can only be cancelled or materially altered by the giving of [*] prior written notice thereof to the Seller, and |
(iii) | under any such cover, all rights of subrogation against the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents, employees and insurers have been waived. |
20 - | TERMINATION |
21 - | ASSIGNMENTS AND TRANSFERS |
21.1 | Assignments |
21.2 | Assignments on Sale, Merger or Consolidation |
(i) | the surviving or acquiring entity is organized and existing under the laws of the United States; |
(ii) | the surviving or acquiring entity has executed an assumption agreement, in form and substance reasonably acceptable to the Seller, agreeing to assume all of the Buyer’s obligations under this Agreement; |
(iii) | at the time, and immediately following the consummation, of the merger, consolidation or sale, no Termination Event exists or will have occurred and be continuing; |
(iv) | there exists with respect to the surviving or acquiring entity no basis for a Termination Event; |
(v) | the surviving or acquiring entity is an air carrier holding an operating certificate issued by the FAA at the time, and immediately following the consummation, of such sale, merger or consolidation; and |
(vi) | [] |
21.3 | Designations by Seller |
21.4 | Transfer of Rights and Obligations upon Reorganization |
22 - | MISCELLANEOUS PROVISIONS |
22.1 | Data Retrieval |
22.2 | Notices |
22.3 | Waiver |
22.4 | International Supply Contract |
22.5 | Certain Representations of the Parties |
22.5.1 | Buyer’s Representations |
(i) | the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement; |
(ii) | neither the execution and delivery by the Buyer of this Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound; |
(iii) | this Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms. |
22.5.2 | Seller’s Representations |
(i) | the Seller is organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the Agreement; |
(ii) | neither the execution and delivery by the Seller of this Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the obligations thereunder, constitutes a breach of any agreement to which the Seller is a party or by which its assets are bound; |
(iii) | this Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. |
22.6 | Interpretation and Law |
22.6.1 | THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. |
22.6.2 | Service of process in any suit, action or proceeding in respect of any matter as to which the Seller or the Buyer has submitted to jurisdiction under Clause 22.6 may be made (i) on the Seller by delivery of the same personally or by dispatching the same via Federal Express, UPS, or similar international air courier service prepaid to, CT Corporation, New York City offices as agent for the Seller, it being agreed that service upon CT Corporation will constitute valid service upon the Seller or by any other method authorized by the laws of the State of New York, and (ii) on the Buyer by delivery of the same personally or by dispatching the same by Federal Express, UPS, or similar international air courier service prepaid, return receipt requested to its address for notices designated pursuant to Clause 22.2, or by any other method authorized by the laws of the State of New York; provided in each case that failure to deliver or mail such copy will not affect the validity or effectiveness of the service of process made as aforesaid. |
22.7 | Headings |
22.8 | Waiver of Jury Trial |
22.9 | Waiver of Consequential Damages |
22.10 | No Representations Outside of this Agreement |
22.11 | Confidentiality |
22.12 | Severability |
22.13 | Entire Agreement |
22.14 | Inconsistencies |
22.15 | Language |
22.16 | Counterparts |
1. | CANCELLATION |
(i) | The provisions of this Amendment. |
(ii) | The clauses of the Agreement that apply to Aircraft that have been delivered in accordance with the Agreement and solely to the extent such clauses apply to such delivered Aircraft. |
(iii) | Clause 22.5 of the Agreement, as amended. |
4.1 | The Seller and RJET will execute and deliver, contemporaneously with the execution and delivery of this Amendment, the RJET NEO Purchase Agreement, and the effectiveness of this Amendment shall be conditional upon such execution and delivery of the RJET NEO Purchase Agreement. |
4.2 | The provisions of this Amendment will constitute a valid amendment to the Agreement and the Agreement will be deemed to be amended to the extent herein provided. This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment. |
4.3 | Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Amendment will be governed by the provisions of the Agreement, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
Date: | March 15, 2012 | By: | /s/ Bryan K. Bedford |
Bryan K. Bedford | |||
President, Chief Executive Officer and Chairman of the Board |
Date: | March 15, 2012 | By: | /s/ Joseph P. Allman |
Joseph P. Allman | |||
Vice President and Corporate Controller |
By: | /s/ Bryan K. Bedford | |
President, Chief Executive Officer and Chairman of the Board | ||
March 15, 2012 |
By: | /s/ Joseph P. Allman | |
Vice President and Corporate Controller | ||
March 15, 2012 |
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