xjtexhibit101




	
EXHIBIT 10.1







FIRST AMENDMENT TO


AMENDED AND RESTATED


CAPACITY PURCHASE AGREEMENT


among


Continental Airlines, Inc.,


ExpressJet Holdings, Inc.,


XJT Holdings, Inc.,


and


ExpressJet Airlines, Inc.


Dated as of March 27, 2003
















                                                         
TABLE OF CONTENTS



                                                                                                                                                    
Page



Parties...............................................................................................................................................
1



Recitals.............................................................................................................................................
1


ARTICLE I

DEFINITIONS; INTERPRETATION


Section 1.1.     
Definitions.................................................................................................................
1


Section 1.2.     
Interpretation.............................................................................................................
1


ARTICLE II

AMENDMENTS TO AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT


Section 2.1.      Amendment to Section
2.02(a).................................................................................. 2


Section 2.2.      Amendment to Section
6.02(b).................................................................................. 2


Section 2.3.      Amendment to Section
9.03(a).................................................................................. 2


Section 2.4.      Amendment to Exhibit
A............................................................................................ 2


Section 2.5.      Addition of Schedule
4.............................................................................................. 2


ARTICLE III

REPRESENTATIONS AND WARRANTIES


Section 3.1.      Representations and Warranties of Holdings, XJT and
ExpressJet............................... 3


Section 3.2.      Representations and Warranties of
Continental........................................................... 1


ARTICLE IV

MISCELLANEOUS


Section 4.1.      Effect of
Agreement................................................................................................... 1


Section 4.2.      Binding Effect;
Assignment......................................................................................... 1


Section 4.3.      Amendment and
Modification.................................................................................... 1


Section 4.4.     
Counterparts.............................................................................................................
1


Section 4.5.     
Severability................................................................................................................
1


Section 4.6.      Entire
Agreement....................................................................................................... 1


Section 4.7.      Governing
Law.......................................................................................................... 1















FIRST AMENDMENT TO


AMENDED AND RESTATED


CAPACITY PURCHASE AGREEMENT


This FIRST AMENDMENT TO AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT (this “Agreement”), dated as
of ____________, 2003, is among Continental Airlines, Inc., a Delaware corporation (“Continental”), ExpressJet
Holdings, Inc., a Delaware corporation (“Holdings”), XJT Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of Holdings (“XJT”), and ExpressJet Airlines, Inc., a Delaware corporation and a
subsidiary of XJT (“ExpressJet”).



                                                                   
RECITALS:


WHEREAS, Continental, Holdings, XJT, and ExpressJet are parties to that certain Amended and Restated Capacity Purchase
Agreement, dated as of April 17, 2002 (the “Amended and Restated Capacity Purchase Agreement”); and


            WHEREAS, Continental, Holdings, XJT, and ExpressJet
desire to amend certain provisions of the Amended and Restated Capacity Purchase Agreement as more fully set forth herein; and


            WHEREAS, Section 11.04 of the Amended and Restated
Capacity Purchase Agreement permits such agreement to be amended in a written agreement signed by Continental, Holdings, XJT, and
ExpressJet;


NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and obligations hereinafter
contained, the parties agree to amend the Amended and Restated Capacity Purchase Agreement as follows:




DEFINITIONS; INTERPRETATION


Definitions


.  Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings set forth in the Amended
and Restated Capacity Purchase Agreement, as amended hereby.


Interpretation


.  Section 11.06 of the Amended and Restated Capacity Purchase Agreement is hereby incorporated by reference herein in its
entirety and shall govern the interpretation of this Agreement.
















AMENDMENTS TO AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT


The Amended and Restated Capacity Purchase Agreement is hereby amended as follows:


Amendment to Section 2.02(a)


.  Section 2.02(a) of the Amended and Restated Capacity Purchase Agreement is hereby amended by adding a new clause (iv)
thereto as follows:


(iv)       Notwithstanding clause (i) of this Section 2.02(a), Continental shall not be
entitled to provide in any notice delivered pursuant to this Section 2.02(a) for the withdrawal of a number of Covered
Aircraft greater than the excess of (i) the number set forth on Schedule 4 hereto for the month in which the
Effective Date set forth in such notice falls, plus the number of Delivered Covered Aircraft that have been withdrawn from the
capacity purchase provisions of this Agreement at any time before such Effective Date in connection with a Labor Strike pursuant to
Section 9.05(c), over (ii) the number of Covered Aircraft that have been withdrawn pursuant to this
Section 2.02 within the three year period immediately preceding such Effective Date.


Amendment to Section 6.02(b)


.  The date “December 31, 2005” contained in the fifth line of Section 6.02(b) of the Amended and Restated
Capacity Purchase Agreement is hereby deleted and replaced with the date “December 31, 2006.”


Amendment to Section 9.03(a)


.  Section 9.03(a) of the Amended and Restated Capacity Purchase Agreement is hereby amended and restated in its entirety
to read as follows:


(a)        By Continental after Six Years.  Continental may terminate this
Agreement for any reason or for no reason, at its sole option, at any time on or after January 1, 2007, by providing written notice
to Contractor that specifies a Termination Date of not more than 18 months nor less than 12 months after the provision of such
notice.  Such written notice may be delivered before January 1, 2007, so long as the Termination Date is on or after January
1, 2007.


Amendment to Exhibit A


.  The definition of “Agreement” in Exhibit A to the Amended and Restated Capacity Purchase Agreement is hereby amended and restated in its entirety to read as follows:


Agreement – means the Amended and Restated Capacity Purchase Agreement, dated as of April 17, 2002, among
Continental, Holdings, XJT and ExpressJet, as amended from time to time pursuant to Section 11.04 hereof.








Addition of Schedule 4


.  The Amended and Restated Capacity Purchase Agreement is hereby amended by adding a Schedule 4 thereto, which Schedule 4
is attached to this Agreement as Annex A.







REPRESENTATIONS AND WARRANTIES


Representations and Warranties of Holdings, XJT and ExpressJet


.  Holdings, XJT and ExpressJet, jointly and severally, represent, warrant and covenant to Continental as of the date
hereof as follows:


Organization and Qualification.  Each of Holdings, XJT and ExpressJet is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own, operate and
use its assets and operate the Regional Airline Services.


Authority Relative to this Agreement.  Each of Holdings, XJT and ExpressJet has the corporate power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby in accordance with the terms
hereof.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of each of Holdings, XJT and ExpressJet.  This Agreement has
been duly and validly executed and delivered by each of Holdings, XJT and ExpressJet and is, assuming due execution and delivery
thereof by Continental and that Continental has legal power and right to enter into this Agreement, a valid and binding obligation
of each of Holdings, XJT and ExpressJet, enforceable against each of Holdings, XJT and ExpressJet in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement of creditors’ rights generally and legal principles of general
applicability governing the availability of equitable remedies (whether considered in a proceeding in equity or at law or otherwise
under applicable law).


Conflicts; Defaults.  Neither the execution or delivery of this Agreement nor the performance by each of Holdings,
XJT and ExpressJet of the transactions contemplated hereby will (i) violate, conflict with, or constitute a default under any of
the terms of either Holdings’, XJT’s or ExpressJet’s certificate of incorporation, by-laws, or any provision of,
or result in the acceleration of any obligation under, any material contract, sales commitment, license, purchase order, security
agreement, mortgage, note, deed, lien, lease or other agreement to which Holdings, XJT or ExpressJet is a party, (ii) result in the
creation or imposition of liens in favor of any third person or entity, (iii) violate any law, statute, judgment, decree, order,
rule or regulation of any governmental authority, or (iv) constitute any event which, after notice or lapse of time or both, would
result in such violation, conflict, default, acceleration or creation or imposition of liens.















Representations and
Warranties of Continental


.  Continental represents and warrants to Holdings, XJT and ExpressJet as of the date hereof as follows:


Organization and Qualification.  Continental is a duly incorporated and validly existing corporation in good
standing under the laws of the State of Delaware.


Authority Relative to this Agreement.  Continental has the corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby in accordance with the terms hereof.  The execution and
delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Continental.  This Agreement has been duly and validly executed and delivered by Continental
and is, assuming due execution and delivery thereof by Holdings, XJT and ExpressJet and that Holdings, XJT and ExpressJet each has
legal power and right to enter into this Agreement, a valid and binding obligation of Continental, enforceable against Continental
in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally and
legal principles of general applicability governing the availability of equitable remedies (whether considered in a proceeding in
equity or at law or otherwise under applicable law).


Conflicts; Defaults.  Neither the execution or delivery of this Agreement nor the performance by Continental of the
transactions contemplated hereby will (i) violate, conflict with, or constitute a default under any of the terms of
Continental’s certificate of incorporation, by-laws, or any provision of, or result in the acceleration of any obligation
under, any material contract, sales commitment, license, purchase order, security agreement, mortgage, note, deed, lien, lease or
other agreement to which Continental is a party, (ii) result in the creation or imposition of any liens in favor of any third
person or entity, (iii) violate any law, statute, judgment, decree, order, rule or regulation of any governmental authority, or
(iv) constitute any event which, after notice or lapse of time or both, would result in such violation, conflict, default,
acceleration or creation or imposition of liens.

















MISCELLANEOUS


Effect of Agreement


.  Except as specifically amended hereby, the Amended and Restated Capacity Purchase Agreement shall remain in full force
and effect and is ratified in all respects by the parties hereto.


Binding Effect; Assignment


.  This Agreement and all of the provisions hereof shall be binding upon the parties hereto and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.  Except with respect to a merger of either party with
another Person, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties.


Amendment and Modification


.  This Agreement may not be amended or modified in any respect except by a written agreement signed by the parties
hereto.


Counterparts


.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.  This Agreement may be executed by facsimile signature.


Severability


.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. 
Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


Entire Agreement


.  This Agreement is intended by the parties as a complete statement of the entire agreement and understanding of the
parties with respect to the subject matter hereof and all matters between the parties related to the subject matter herein set
forth.












Governing Law


.  This Agreement shall be governed by and construed in accordance with the laws of the State of Texas (excluding Texas
choice-of-law principles that might call for the application of the law of another jurisdiction) as to all matters, including
matters of validity, construction, effect, performance and remedies.  Except as otherwise provided in Section 11.08(e) of the
Amended and Restated Capacity Purchase Agreement, any action arising out of this Agreement or the rights and duties of the parties
arising hereunder may be brought, if at all, only in the state or federal courts located in Harris County, Texas.


(Signature Page Follows)















IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Amended and Restated Capacity Purchase Agreement to
be duly executed and delivered as of the date and year first written above.


CONTINENTAL AIRLINES, INC.



By:                                                                  


Name:  Jeffery A. Smisek


Title:  Executive Vice President – Corporate


EXPRESSJET HOLDINGS, INC.



By:                                                                  


Name:  James B. Ream



                                                                       
Title:     President and


Chief Executive Officer


XJT HOLDINGS, INC.



By:                                                                  


Name:  James B. Ream



                                                                       
Title:     President and



                                                                                   
Chief Executive Officer


EXPRESSJET AIRLINES, INC.



By:                                                                  


Name:  James B. Ream



                                                                       
Title:     President and



                                                                                   
Chief Executive Officer















ANNEX A


SCHEDULE 4 TO AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT



                                   
Effective
Date                                      
Total



                                   
July,
2004                                           
  84



                                   
August,
2004                                       
  81



                                   
September,
2004                                 
  79



                                   
October,
2004                                    
  77



                                   
November,
2004                                 
  75



                                   
December,
2004                                 
  72



                                   
January,
2005                                      
  70



                                   
February,
2005                                   
  69



                                   
March, 2005 – May,
2007                     69