exv10w2



 



FOURTH AMENDMENT TO CODE SHARE AND REVENUE

SHARING AGREEMENT AND RELEASE



     THIS FOURTH AMENDMENT TO CODE SHARE AND REVENUE SHARING AGREEMENT AND
RELEASE (this “Fourth Amendment”) is made and entered as of September 5, 2003
(the “Effective Date”), between AMERICA WEST AIRLINES, INC., a Delaware
corporation (“AWA”), MESA AIRLINES, INC., a Nevada corporation (“Mesa”), AIR
MIDWEST, INC., a Kansas corporation (“AM”), and FREEDOM AIRLINES, INC., a
Nevada corporation (“Freedom”).


     RECITALS:


     A.     AWA, Mesa, AM and Freedom are parties to that certain Code Share and
Revenue Sharing Agreement, dated to be effective February 1, 2001, as amended
by that certain First Amendment to Code Share and Revenue Sharing Agreement,
dated to be effective April 27, 2001, that certain Second Amendment to Code
Share and Revenue Sharing Agreement, dated to be effective October 24, 2003,
and that certain Third Amendment to Code Share and Revenue Sharing Agreement,
dated to be effective January 29, 2003 (the “Code Share Agreement”). All
capitalized terms used herein, but not otherwise defined herein, shall have the
meaning given to such terms in the Code Share Agreement.


     B.     The Code Share Agreement requires Mesa to provide certain Flight
Services and Other Services for AWA, pursuant to the terms and conditions of
the Code Share Agreement.


     C.     AWA and Mesa desire to amend the Code Share Agreement pursuant to the
terms and conditions of this Fourth Amendment.


     D.     AWA and Mesa, subject to certain exceptions, desire to release the
other from certain amounts owed under the Code Share and Revenue Sharing
Agreement dated July 15, 1998, as amended (“Original Agreement”) and the Code
Share Agreement.


     E.     In connection with the execution of this Amendment, AWA intends to
compensate Mesa in an amount equal to $[...***...] (“Payment Amount”), which
amount shall be offset and paid pursuant to the terms of this Fourth Amendment.


     NOW, THEREFORE, in consideration of the promises, covenants,
representations and warranties hereinafter set forth, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
AWA and Mesa, and Freedom and AM as Affiliated Service Providers under and
pursuant to the Code Share Agreement, agree as set forth below.







	 [. . . *** . . .] Portions hereof have been omitted and filed separately with
the Commission pursuant to a request for confidential treatment in accordance
with Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


 






 






     AMENDMENTS:



	 	1.	 	The Parties agree that the first paragraph of Section 2.1 of
the Code Share Agreement is amended in its entirety as follows:
	 
	 	 	 	Flight Service. During the term of this Agreement, Mesa (and its
Affiliated Service Providers) shall operate America West Express
air transportation services (the “Flight Services”), using the
Fleet of Aircraft established pursuant to Section 2.2, to and from
the cities and based upon the schedule established from time to
time by AWA (the “Schedule”) in written notice to Mesa (a “Schedule
Notice”). For purposes of this Agreement, “Flights” means flights
operated pursuant to the Schedule. AWA may change the Schedule by
issuance of a Schedule Notice at any time. When creating a
Schedule, AWA shall: (i) take into account Mesa’s (or its
Affiliated Service Providers’) aircraft maintenance requirements;
(ii) create a Schedule which will permit Mesa (or its Affiliated
Service Providers)to schedule flight crews in a manner consistent
with industry operational practices; (iii) schedule block times
based on AWA’s internal block time policy; (iv) provide for the
following turn times: (a) in a hub location: 20 minutes for Dash
8s and 25 minutes for any Aircraft in the CRJ Subfleet; and (b) in
other stations: 15 minutes for Dash 8s and 20 minutes for any
Aircraft in the CRJ Subfleet; (v) take into account airport
facilities available for Aircraft handling; (vi) provide for
maintenance as required by Section 2.6.3 and scheduled heavy
maintenance on Aircraft as required from time to time; and (vii)
provide for at least 45 days prior notice of any holiday
cancellations. Mesa (and its Affiliated Service Providers) shall
implement all changes in the Schedule contained in a Schedule
Notice in accordance with AWA’s scheduling requirements within 60
days after Mesa’s receipt of a Schedule Notice. Mesa or any of its
affiliates shall not provide any flight service for any other
airline for flights that originate in or end in Phoenix, Arizona,
other than flights approved in advance by AWA, in writing, that are
scheduled or operated for maintenance requirements only; provided,
however, that Mesa, until 11:59 p.m. Phoenix time on March 1, 2004,
may operate [...***...] as United Express into Phoenix, Arizona
[...***...].
	 
	 	2.	 	The Parties agree that the introductory paragraph of Section
2.2.2 and Section 2.2.2(a) of the Code Share Agreement are amended
in their entirety as follows:
	 
	 	 	 	CRJ Fleet Expansion. Pursuant to the Aircraft Contract, Mesa (or
its Affiliated Service Providers) has the right to acquire
additional CRJ Model 900 Aircraft, by virtue of firm orders (the
“Firm Aircraft”), and additional CRJ Models 700 and 900 Aircraft,
by virtue of options (the “Option Aircraft”), in the number and in
the months set forth on Exhibit A, attached hereto. The Firm
Aircraft consist of CRJ Model 900 Aircraft and the Option Aircraft
consist of CRJ Models 700 and 900 Aircraft as set forth in Exhibit
A. For purposes of this Agreement, the CRJ Model 200s shall be a
“CRJ Subfleet” and the CRJ Model 700s and 900s shall be a “CRJ
Subfleet”. The term “CRJ” is intended to refer to CRJ Models 200s,
700s or 900s, as applicable.








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	(a)	 	Each of the Firm Aircraft shall be placed into
Flight Services by Mesa (or its Affiliated Service Providers)
in the calendar months set forth on Exhibit A (the “Delivery
Schedule”). Mesa shall provide AWA with at least 90 days’
prior written notice of the week each of the Firm Aircraft
will be placed into Flight Service under this Agreement and at
least 60 days’ prior written notice of the date on which each
of the Firm Aircraft will be placed into Flight Service under
this Agreement (each, a “Scheduled Delivery Date”).




	 	3.	 	The Parties agree that Section 2.2.2(c) of the Code Share
Agreement is amended by: (A) adding the phrase: (i) “or in the
calendar month in which the Firm Aircraft is to be delivered
pursuant to the Delivery Schedule, as applicable” after “Scheduled
Delivery Date” in the first sentence of Section 2.2.2(c); and (ii)
“or the calendar month in which the Firm Aircraft is to be delivered
pursuant to the Delivery Schedule, as applicable” after the term
“Scheduled Delivery Date” is used in the second and third sentences
of Section 2.2.2(c); and (B) adding the parenthetical “(as initially
established by the Delivery Notice, as defined in Section 2.2.2(e))”
after the term “Scheduled Delivery Date” in the Section.
	 
	 	4.	 	The Parties agree that the Code Share Agreement is amended by
adding the following as Section 2.2.2(d):
	 
	 	 	 	Notwithstanding anything contained in Sections 2.2.2(a) and (c) to
the contrary, Mesa, by providing AWA with written notice (a “Delay
Notice”) at least [...***...] prior to the first day of the
calendar month in which a Firm Aircraft is to be delivered pursuant
to the Delivery Schedule (the “Scheduled Delivery Month”), may, at
its sole option and without penalty of any kind, delay the
Scheduled Delivery Month for a Firm Aircraft by up to [...***...]
if either: (i) Bombardier notifies Mesa, in writing, that
Bombardier will be unable to deliver the applicable Firm Aircraft
on time; or (ii) if Mesa, despite using commercially reasonable
efforts, is unable to obtain financing for the applicable Firm
Aircraft, timely to deliver the Firm Aircraft in the Scheduled
Delivery Month. The Delay Notice shall: (i) be accompanied with
the Bombardier notice or a reasonable description of the efforts
made by Mesa to obtain the financing and the reason for not
obtaining the financing, as applicable; and (ii) establish the new
Scheduled Delivery Month in which the Firm Aircraft being delayed
is to be delivered. Mesa shall only be entitled to extend the
Scheduled Delivery Month for a Firm Aircraft one time pursuant to
this Section 2.2.2(d).
	 
	 	5.	 	The Parties agree that the Code Share Agreement is amended by
adding the following as Section 2.2.2(e):
	 
	 	 	 	Bombardier Delivery Date. Pursuant to Mesa’s agreement with
Bombardier, Bombardier is required to provide Mesa with 90 days’
written notice of the scheduled delivery week of each Firm Aircraft
(the “B-90 Notice”). Based on the








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	 	 	B-90 Notice, Mesa, at least 60 days prior to the Scheduled Delivery
Date, provides AWA with written notice of the Scheduled Delivery
Date pursuant to the last sentence of Section 2.2.2(a) (the
“Delivery Notice”) for each Firm Aircraft. For purposes of this
Section 2.2.2(e), Mesa, based upon a change in delivery dates
received by Mesa from Bombardier, shall have the right to extend
the Scheduled Delivery Date to a new date certain once for each
Firm Aircraft by providing AWA with written notice at least 45 days
prior to the Scheduled Delivery Date established by the applicable
Delivery Notice (the “Extension Notice”). If a Firm Aircraft is
delivered by Mesa to AWA and is ready to be placed into Flight
Services prior to the Scheduled Delivery Date established by the
Delivery Notice (as may be extended by an Extension Notice), then
AWA shall not be obligated to make any payment under this Agreement
for such Firm Aircraft until the Scheduled Delivery Date
established by Mesa pursuant to the Delivery Notice (as may be
extended by an Extension Notice). If a Firm Aircraft is delivered
by Mesa to AWA and is ready to be placed into Flight Services after
the Scheduled Delivery Date established by the Delivery Notice (as
may be extended as a result of an Excusable Delay or an Extension
Notice), then, notwithstanding anything in Section 2.2.2(c) to the
contrary, Mesa, within 30 days after receipt of written demand from
AWA, shall pay to AWA an amount equal to $[...***...] for each day
following the fifth day after the Scheduled Delivery Date that the
Firm Aircraft is not delivered until the date that the Firm
Aircraft is available to AWA to be placed into Flight Services
under this Agreement (“Delay Amount”), not to exceed for any Firm
Aircraft the greater of (i) $[...***...] or (ii) the amount paid by
Bombardier to Mesa as damages for the late delivery of such Firm
Aircraft. An “Excusable Delay” shall be defined to include delays
commencing after the date of the Delivery Notice and before the
Scheduled Delivery Date (as may be extended by an Extension Notice)
and occasioned by the following causes:
	 



	 	i.	 	acts of God;
	 
	 	ii.	 	war, warlike operations, act of the
enemy, armed aggression, civil commotion, insurrection,
riot or embargo;
	 
	 	iii.	 	fire, explosion, earthquake, lightning,
flood, drought, windstorm or other action of the elements
or other catastrophic or serious accidents;
	 
	 	iv.	 	epidemic or quarantine restrictions;
	 
	 	v.	 	any change in legislation, acts, orders,
directives or regulations of any governmental or other
duly constituted authority (other than CRJ Regulatory
Changes and CRJ Airworthiness Directives) once the
applicable Aircraft type has been certified by the FAA; or
	 
	 	vi.	 	strikes, lock-out, walk-out, and/or other
labor troubles, in each case, with respect to employees of
Bombardier causing cessation of work;.
	 



	 	 	 	If an Excusable Delay occurs, then the Scheduled Delivery Date for
purposes of this Section 2.2.2(e) shall be extended for the number
of days of Excusable Delay (“Excusable Delay Period”), and the
Delay Amount shall not begin to accrue until the fifth day after
the Scheduled Delivery Date, as extended by the Excusable








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	 	 	Delay Period. The terms of this Section 2.2.2(e) are in addition
to, and not in lieu of, the terms of Sections 2.2.2(c) and
2.2.2(d).
	 
	 	6.	 	The Parties agree that the Code Share Agreement is amended by
adding the following as Section 2.2.2(f):
	 
	 	 	 	CRJ 900 Put Option. Mesa, by written notice to AWA given on or
before the 180th day prior to the first day of the applicable
Scheduled Delivery Month (each, an “Induction Notice”), shall have
the right to add to the CRJ Subfleet and place into Flight Services
under this Agreement up to [...***...] CRJ Model 900s as follows:
(i) [...***...] of the [...***...] CRJ Model 900s scheduled to be
placed into Flight Services in [...***...] (the other [...***...]
is to be placed into Flight Services without notice); and (ii)
[...***...] of the CRJ Model 900s scheduled to be placed into
Flight Services in [...***...] (each, a “Put CRJ 900s”). Each
Induction Notice shall set forth the number of Put CRJ 900s to be
added to the CRJ Subfleet. After an Induction Notice is given for
a Put CRJ 900, all of the terms, covenants and conditions of this
Agreement relating to the establishment of the delivery week,
Scheduled Delivery Date, delivery delays (and rights, obligations
and penalties associated therewith) and the placing of Firm
Aircraft into the CRJ Subfleet and Flight Services shall apply to
the Put CRJ 900s. All Put CRJ 900s shall be marked with AWA’s
livery and shall be configured with all coach seating in the manner
required by AWA, at Mesa’s sole cost and expense, upon being placed
into Flight Services. If Mesa does not issue an Induction Notice
for [...***...] Put CRJ 900s, timely, then notwithstanding the
inclusion of such Put CRJ 900s on the Delivery Schedule, such Put
CRJ 900s shall not be added to the CRJ Subfleet nor placed into
Flight Services pursuant to this Agreement.
	 
	 	7.	 	The Parties agree that the Code Share Agreement is amended by
adding the following as Section 2.2.2(g):
	 
	 	 	 	700/900 Swap Right. In the event that [...***...] and it
subsidiaries (collectively, “[...***...]”) cease to operate as
certificated air transportation providers and elect or are forced
to liquidate their assets or if Mesa’s (or its affiliates’) code
share agreement or any other agreement to operate CRJ Model 700
aircraft for [...***...] and if no substitute or modified agreement
is reached for Mesa or its affiliates to operate such aircraft,
either with [...***...]) (each, the “Trigger Event”), then Mesa, by
providing AWA with written notice within 30 days of the Trigger
Event (the “Swap Notice”), may elect to substitute [...***...] of
the CRJ Model 900s, that are either: (i) scheduled to be added to
the CRJ Subfleet and placed into Flight Services pursuant to the
Delivery Schedule; or (ii) subject to the put right to AWA pursuant
to Section 2.2.2(f), in either case more than 60 days after the
date of the Trigger Event, with CRJ Model 700s (the “Swap 700s”).
The Swap Notice shall indicate the number of Aircraft to be
substituted and the Scheduled Delivery Months in which the
substitutions are to occur. If Mesa issues the Swap Notice,
timely, then each of the Swap 700s shall be added to the








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	 	 	CRJ Subfleet and placed into Flight Services in the same Scheduled
Delivery Months as for each of the CRJ Model 900s to be replaced
and all of the terms, covenants, and conditions relating to the
establishment of the delivery week, Scheduled Delivery Date,
delivery delays (and rights, obligations, and penalties associated
therewith) and placing of the Firm Aircraft into the CRJ Subfleet
and Flight Services shall apply to the Swap 700s. If Mesa does not
issue the Swap Notice, timely, then Mesa shall have no further
right to swap CRJ Model 700s for CRJ Model 900s pursuant to this
Section 2.2.2(g). All Swap 700s shall be marked with AWA’s livery
and shall be configured with all coach seating in the manner
required by AWA, at Mesa’s sole cost and expense for the
[...***...] and AWA’s sole cost and expense for any additional
Swap 700s ([...***...]), upon being placed into Flight Services.
All Swap 700s shall be reintroduced into Flight Services at the
same ownership cost (not to exceed the cap for such ownership costs
set forth in Exhibit C) existing for such Aircraft on the date such
Aircraft was removed pursuant to Section 2.2.3 or 2.2.5(d), as
applicable. Mesa’s right to issue a Swap Notice and to substitute
CRJ Model 700s for CRJ Model 900s pursuant to this Section 2.2.2(g)
is expressly subject to the condition that neither Mesa nor any of
its affiliates take any action, including, but not limited to,
[...***...], that seeks, attempts to cause, requests or increases
the risk of the occurrence of a Trigger Event. Mesa’s right to
issue a Swap Notice and to substitute CRJ Model 700s for CRJ Model
900s pursuant to this Section 2.2.2(g) will terminate effective
without further documentation if such condition is not met.
	 
	 	8.	 	The Parties agree that Section 2.2.3 of the Code Share
Agreement is amended by adding the following:
	 
	 	 	 	Elimination of CRJ Model 700s. In addition to the terms of
Sections 2.2.4 and 2.2.5(d), (i) in recognition of the total of
four (4) CRJ Model 900s to be delivered pursuant to the Delivery
Schedule in October 2003, November 2003 and December 2003, Mesa
shall remove, or cause Freedom to remove, from the CRJ Subfleet one
(1) CRJ Model 700 at 11:59 p.m. Phoenix time on each of the
following dates: November 24, 2003; December 1, 2003; December 2,
2003; and December 24, 2003; and (ii) on each date that a CRJ Model
900 is placed into Flight Services pursuant to the terms of this
Agreement, commencing with the CRJ Model 900 to be delivered in
January 2004, Mesa shall remove, or shall cause Freedom to remove,
from the CRJ Subfleet a CRJ Model 700 for each CRJ Model 900 placed
into Flight Services, until the number of CRJ Model 700s in the CRJ
Subfleet is reduced to zero, which, pursuant to the Delivery
Schedule, is scheduled to occur upon the delivery of the March 2004
CRJ Model 900. AWA shall reimburse Mesa for the actual,
out-of-pocket costs or expenses incurred by Mesa (or Freedom as
applicable) as a direct result of the painting (including the days
out of service for painting) of each CRJ Model 700 removed pursuant
to this Section 2.2.3 within thirty (30) days after receipt of an
invoice from Mesa together with commercially reasonable evidence of
such costs or expenses.








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	9.	 	The Parties agree that Section 2.2.4 of the Code Share
Agreement is amended in its entirety as follows:
	 
	 	 	 	Additional CRJ Fleet Reduction. In addition to the terms of
Sections 2.2.3 and 2.2.5, upon 180 days’ prior written notice from
AWA to Mesa given from time to time during the Term, AWA, subject
to limitations set forth in the next sentence, may require Mesa to
reduce, or require Mesa to cause Freedom to reduce, the number of
Aircraft in the combined CRJ Subfleets. AWA shall not require Mesa
to reduce, or require Mesa to cause Freedom to reduce, the number
of Aircraft: (i) in the CRJ Model 200 CRJ Subfleet prior to January
1, 2007; (ii) in the CRJ Model 900s (and CRJ Model 700s if any CRJ
Model 900s are replaced pursuant to Section 2.2.2(g)) CRJ Subfleet
prior to: (1) January 1, 2007, if Mesa does not induct any of the
Put CRJ 900s pursuant to Section 2.2.2(f) (as may be replaced
pursuant to Section 2.2.2(g) with CRJ Model 700s), or (2) July 1,
2006, if Mesa inducts one or more of the Put CRJ 900s pursuant to
Section 2.2.2(f) (as may be replaced pursuant to Section 2.2.2(g)
with CRJ Model 700s); and (iii) in the combined CRJ Subfleets by
more than one Aircraft in any Six Calendar Month Period;
notwithstanding such limitation, during the two (2) Six Calendar
Month Periods commencing January 1, 2007 and July 1, 2007, AWA may
reduce the combined CRJ Subfleets by either: (i) up to two (2) CRJ
Model 200 Aircraft; or (ii) one (1) CRJ Model 900 or CRJ Model 700
Aircraft and one (1) CRJ Model 200 Aircraft, in each such Six
Calendar Month Periods. For purposes of this Agreement, “Six
Calendar Month Period” means each period during the Term (as
defined below) commencing on January 1 and ending on June 30 and
commencing on July 1 and ending on December 31.
	 
	 	10.	 	The Parties agree that Section 2.2.5 of the Code Share
Agreement is amended in its entirety as follows:
	 
	 	 	 	Additional Aircraft Reduction.
	 




	 	(a)	 	Effective July 1, 2003, the Subfleet of Beech
1900s was reduced to zero. From and after July 1, 2003, Mesa
shall no longer provide any Flight Services using Beech 1900s
and AWA shall have no payment or other obligations under this
Agreement accruing or arising after July 1, 2003 in regards to
any Beech 1900s. All references to the Beech 1900s and the
subcontracting of services relating to the Beech 1900s shall
be eliminated from the Agreement effective as of July 1, 2003.
	 
	 	(b)	 	Mesa, on July 1, 2003, removed one (1) Dash 8
Aircraft from the Dash 8 Subfleet and on September 3, 2003,
will remove two (2) Dash 8 Aircraft from the Dash 8 Subfleet.
At any time during the Term after August 25, 2007, AWA may
require Mesa to reduce the Subfleet of Dash 8s to zero by
providing Mesa with at least 180 days’ prior written notice of
AWA’s election to eliminate the Dash 8s on or after such date
(the “Dash 8 Elimination Notice”). The Dash 8 Elimination
Notice may be given at any time during the Term on or after
February 27, 2007.



 






 







	 	(c)	 	Mesa removed one (1) CRJ Model 200 from the CRJ
Subfleet (for a total of five (5) CRJ Model 200s) on each of
the following dates:
	 
	 	 	 	April 27, 2003


June 4, 2003


June 22, 2003


June 27, 2003


July 2, 2003
	 
	 	 	 	reducing the CRJ Model 200 CRJ Subfleet to 18 Aircraft.
	 
	 	(d)	 	Mesa removed two (2) CRJ Model 700s from the CRJ
Subfleet at 11:59 p.m. Phoenix time on September 2, 2003.
Mesa shall remove, or cause Freedom to remove, (or not place
into Flight Services, as applicable) one (1) CRJ Model 700 at
11:59 p.m. Phoenix time on September 14, 2003, and two (2) CRJ
Model 700s at 11:59 p.m. Phoenix time on September 21, 2003
from the CRJ Subfleet, reducing the CRJ Model 700s in the
applicable CRJ Subfleet to 10.
	 
	 	(e)	 	On or before October 31, 2003, AWA, by written
notice to Mesa, shall have the right to cause the 12 CRJ Model
900s scheduled to be delivered into Flight Services from
April, 2005 to November, 2005 (the “Rejectable CRJs”),
pursuant to the Delivery Schedule, not to be added to the CRJ
Subfleet and not to be placed into Flight Services (the “900
Election Notice”). If AWA does not issue the 900 Election
Notice, timely, and such failure to issue the 900 Election
Notice, timely, continues for 15 days after AWA’s receipt of
written notice from Mesa stating that AWA failed to issue the
900 Election Notice, then AWA shall have no further right to
issue a 900 Election Notice and reject the Rejectable CRJs.
If AWA issues the Election Notice as provided by this Section
2.2.5(e), then none of the Rejectable CRJs shall be added to
the CRJ Subfleet or placed into Flight Services under this
Agreement.
	 
	 	(f)	 	Neither Mesa, AM nor Freedom shall operate any
Aircraft removed from Flight Services for itself or any other
airline while the Aircraft are marked with AWA’s livery
	 
	 	(g)	 	From and after the date each Aircraft was or is
removed from Flight Services pursuant to any section of this
Agreement, AWA had and shall have no further payment or other
obligation under this Agreement for such Aircraft.
	 



	 	11.	 	The Parties agree that Section 2.2.6 is amended in its
entirety as follows:
	 
	 	 	 	Spares. Mesa shall have available 1 spare CRJ Model 200, 700 or
900 Aircraft for Flight Services under this Agreement at any time
there are 25 or more Aircraft in the combined CRJ Subfleets in
Flight Services under this Agreement and 2 spare CRJ Model 200, 700
or 900 Aircraft available for Flight Services under this Agreement
at any time there are 65 or more Aircraft in the combined CRJ
Subfleets in Flight Services under this Agreement. AWA shall pay
the Actual Costs, Guaranteed Non-Maintenance Costs (other than
overhead) and Guaranteed



 






 







	 	 	 	Maintenance Costs actually incurred by or payable to Mesa for each
spare Aircraft as provided in Section 7.
	 
	 	12.	 	The Parties agree that the Code Share Agreement is amended by
adding the following as Section 2.2.8:
	 
	 	 	 	Affiliated Service Provider Aircraft. Mesa, with at least 30 days’
prior written notice to AWA, may substitute any Aircraft operated
by Mesa or Freedom under or pursuant to this Agreement with an
aircraft of the same model, capacity, configuration and meeting the
other requirements of this Agreement, operated by an Affiliated
Service Provider (each, a “Substituted Aircraft”); provided that
Mesa and such Affiliated Service Provider have complied with the
provisions of Section 2.1 and all other provisions relating to
Affiliated Service Providers. Upon each substitution, each
Substituted Aircraft shall become an Aircraft for all purposes of
this Agreement. Mesa shall reimburse AWA for any out-of-pocket
costs or expenses incurred by AWA as a result of the substitution
of Aircraft under this Section 2.2.8 within thirty (30) days after
receipt of an invoice from AWA together with commercially
reasonable evidence of the out-of-pocket costs or expenses actually
incurred by AWA.
	 
	 	13.	 	The Parties agree that the Code Share Agreement is amended by
deleting Section 7.1.8.
	 
	 	14.	 	The parties agree that the Code Share Agreement is amended by
adding the following as a new Section 7.10:
	 
	 	 	 	Station Costs. AWA shall reimburse to Mesa the costs and expenses
incurred by Mesa at stations maintained by Mesa in the amounts and
at the rates set forth in Exhibit B, attached hereto (the “Station
Costs”). Mesa shall invoice, as part of the “Estimated Costs”, and
AWA shall pay the Station Costs on a monthly basis in accordance
with Section 7.5.1 of this Agreement. Pursuant to Section 7.5.2 of
this Agreement, Mesa shall include in each Incurred Costs Statement
the final amount of the Station Costs payable by AWA to Mesa for
each applicable calendar month, all as calculated in accordance
with Exhibit B, attached hereto. Underpayments and overpayments of
Station Costs shall be reconciled in the manner set forth in
Section 7.5.2 for “Incurred Costs”. The terms of Section 7.5.4
shall be applicable to the Station Costs included or not included
in each applicable Incurred Costs Statement; provided, however,
that if any landlord or operator of any station is entitled to
retroactively adjust station rents, then the applicable station
rent shall be adjusted by Mesa as soon as reasonably practicable
after such adjustment and shall be paid by or reimbursed to AWA
within 30 days after Mesa provides AWA with notice of such
adjustment and recalculation. All of the terms contained in
Sections 7.8 and 7.9 shall apply to the invoicing, paying,
collecting and auditing of Station Costs.
	 
	 	 	 	AWA and Mesa intend for the Station Costs to be effective
retroactive to January 1, 2003. As soon as practicable and in no
event later than 90 days after the Effective Date of the Fourth
Amendment, Mesa shall submit to AWA a reconciliation of the Station
Costs (the “Reconciliation”) since January 1, 2003



 






 







	 	 	 	calculated in accordance with Exhibit F. To the extent the
Reconciliation discloses that sums are due from AWA to Mesa, AWA
shall pay such sums to Mesa.
	 
	 	15.	 	The Parties agree that Section 8.1 of the Code Share
Agreement is amended as follows:
	 
	 	 	 	Term. The term of this Agreement (the “Term”) commences on the
Effective Date retroactive to the Contract Date (the
“Commencement Date”) and shall expire at 11:59 p.m., Phoenix
time, on June 30, 2012 (“Expiration Date”), unless earlier
terminated as provided in this Agreement. Notwithstanding the
foregoing to the contrary, if the 900 Election Notice is not
issued by AWA to Mesa as required by Section 2.2.5(e) and the
Rejectable CRJs are added to the CRJ Subfleet, then the
Expiration Date shall be extended to 11:59 p.m., Phoenix time,
on November 30, 2013. AWA, by written notice to Mesa at least
180 days prior to the Expiration Date, may extend the
Expiration Date for two years, expiring at 11:59 p.m., Phoenix
time, on June 30, 2014 or November 30, 2015, as applicable.
	 
	 	16.	 	The Parties agree that Exhibit A to the Code Share Agreement
is amended in its entirety as set forth in Attachment 1 to this
Fourth Amendment, and Exhibit B to the Code Share Agreement is
amended in its entirety as set forth in Attachment 2 to this Fourth
Amendment.
	 
	 	17.	 	Reserved.
	 
	 	 	 	AGREEMENTS:
	 
	 	18.	 	Release.




	 	(a)	 	Except as provided in Section 17(c), below, AWA
fully and finally releases, acquits and forever discharges
Mesa and its parent companies and subsidiaries from any and
all claims or demands for any amounts owed, accrued, payable,
incurred, billed or invoiced pursuant to the Code Share
Agreement or the Original Agreement for matters, services,
actions, events, activities or other items provided or
occurring on or before, or related to the period expiring on,
December 31, 2002.
	 
	 	(b)	 	Except as provided in Section 17(c), below, Mesa,
AM and Freedom fully and finally release, acquit and forever
discharge AWA and its parent companies and subsidiaries from
any and all claims or demands for any amounts owed, accrued,
payable, incurred, billed or invoiced pursuant to the Code
Share Agreement or the Original Agreement for matters,
services, actions, events, activities or other items provided
or occurring on or before, or related to the period expiring
on, December 31, 2002.
	 
	 	(c)	 	Notwithstanding the foregoing, the parties agree
that the releases set forth in subsections (a) and (b) above
shall not apply to (i) any amounts accruing or payable under
the Code Share Agreement after December 31, 2002 for



 






 







	 	 	 	services, actions, events, activities or other items occurring
after December 31, 2002; (ii) any amounts owed by Mesa pursuant
to Section 5 of the Code Share Agreement (provided, however,
that AWA shall not use its right of offset for these amounts
until payment by AWA of any amounts owing pursuant to the
Reconciliation, unless Mesa has not provided AWA with the
Reconciliation pursuant to Section 7.10 within 90 days of the
Effective Date of this Fourth Amendment in which case AWA may
exercise its offset rights for these amounts at any time after
the 90th day after the Effective Date of this Fourth Amendment);
(iii) any Transition Reimbursement owed by AWA pursuant to
Section 2.2.7 of the Code Share Agreement; (iv) any amounts to
be paid by AWA pursuant to paragraph 18 below; (v) any amount
payable by AWA to Mesa for the closure of the maintenance base
in Columbus, Ohio pursuant to Section 2.6.3 of the Code Share
Agreement; (vi) any amounts owed by Mesa to AWA as reimbursement
for overpayment of landing fees by AWA to Mesa; or (vii) any
amounts payable by Mesa to AWA as reimbursement for Aviation
Security Infrastructure Fees.




	 	19.	 	Payment Obligation. On the Effective Date, AWA shall be
obligated to pay to Mesa the Payment Amount, which Payment Amount
AWA and Mesa agree is offset by $[...***...] of the $[...***...]
received by Mesa from [...***...]. If Mesa is required by
[...***...] to return any portion of the [...***...], AWA, either
within thirty (30) days of written notice from Mesa or consistent
with any payment plan that Mesa may have negotiated with [...***...]
for satisfying any return or repayment obligation (the “Payment
Plan”), shall pay Mesa the difference between (i) $[...***...] and
the (ii) the amount of [...***...] that Mesa is not required to
return to [...***...] as a result of [...***...], not to exceed, in
the aggregate, the Payment Amount (the “Reimbursement Payment”). In
no event shall the Reimbursement Payment be calculated by taking
into account the receipt or reimbursement of any funds received by
Mesa pursuant to [...***...]. Mesa shall use good faith efforts to
negotiate a commercially reasonable Payment Plan for the repayment
of any [...***...]. If Mesa is permitted to make the repayment
pursuant to a Payment Plan, then AWA shall pay to Mesa the amount of
each installment payable by Mesa pursuant to the Payment Plan at
least one business day prior to each installment payment being
payable by Mesa (up to an aggregate amount not to exceed the
Reimbursement Payment).
	 
	 	 	 	If AWA has made the Reimbursement Payment and Mesa has caused any
of the Put CRJ 900s (as may be replaced pursuant to Section
2.2.2(g) of the Code Share Agreement with CRJ Model 700s) to be
placed into Flight Services pursuant to an Induction Notice from
Mesa, then Mesa, on the date that each Put CRJ 900 (or CRJ Model
700, as applicable) is placed back into Flight Services, shall pay
to AWA an amount equal to 1/6th of the Reimbursement Payment made
by AWA, for each of the Put CRJ 900s (or CRJ Model 700, as
applicable) placed into Flight Services (each, an “Induction
Payment”). If Mesa has negotiated a Payment Plan [...***...], then
Mesa shall be entitled to make each Induction Payment on terms
similar to the repayment terms of the Payment Plan.








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 







	 	20.	 	Withdrawal of Notice. AWA withdraws all notices that it
provided to Mesa for the cancellation of three (3) CRJ Model 700s
and agrees and acknowledges that, as of the Effective Date of this
Fourth Amendment, the number of CRJ Model 700s in the CRJ Subfleet
(and committed to be added to the CRJ Subfleet) is, in the
aggregate, fifteen (15).
	 
	 	21.	 	CRJ Model 200s. As of the Effective Date of this Fourth
Amendment, the number of CRJ Model 200s in the CRJ Subfleet is
eighteen (18).
	 
	 	22.	 	Effect. Except as set forth in this Fourth Amendment, all of
the terms and conditions of the Code Share Agreement remain in full
force and effect.
	 
	 	23.	 	Counterparts. This Fourth Amendment may be executed in
counterparts, all of which when taken together shall be one and the
same document.
	 
	 	24.	 	Entire Agreement. This Fourth Amendment constitutes the
entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect
thereto.




	 	 	 	 	 
	 	 	AMERICA WEST AIRLINES, INC.
	 	 	 	 	 
	 	 	
By:
	 	/s/ J. Scott Kirby
	 	 	 	 	

	 	 	
Name:
	 	J. Scott Kirby
	 	 	
Title:
	 	EVP - Sales and Marketing
	 	 	 	 	 
	 	 	MESA AIRLINES, INC.
	 	 	 	 	 
	 	 	
By:
	 	/s/ Jonathan Ornstein
	 	 	 	 	

	 	 	
Name:
	 	Jonathan Ornstein
	 	 	
Title:
	 	Chief Executive Officer
	 	 	 	 	 
	 	 	AIR MIDWEST, INC.
	 	 	 	 	 
	 	 	
By:
	 	/s/ George Murnane
	 	 	 	 	

	 	 	
Name:
	 	George Murnane
	 	 	
Title:	 	 
	 	 	 	 	




 






 




	 	 	 	 	 
	 	 	FREEDOM AIRLINES, INC.
	 	 	 	 	 
	 	 	
By:
	 	/s/ Michael Lotz
	 	 	 	 	

	 	 	
Name:
	 	Michael Lotz
	 	 	
Title:	 	 
	 	 	 	 	




 






 



Exhibit A

CRJ-700/900 Delivery Schedule




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Current	 	 	 	 	 	New	 	 	 	 	 	 	 	 	 	Total
	 	 	CRJ-900	 	CRJ-700	 	CRJ-900	 	 	 	 	 	 	 	 	 	CRJ-7/900
	 	 	Deliveries	 	Reductions	 	Deliveries	 	CRJ-700	 	CRJ-900	 	Fleet
	 	 	
	 	
	 	
	 	
	 	
	 	

	9/2/03
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	Sep-03
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oct-03
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nov-03
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dec-03
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jan-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Feb-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mar-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Apr-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	May-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jun-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jul-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aug-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sep-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oct-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nov-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dec-04
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jan-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Feb-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mar-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Apr-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	May-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jun-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jul-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aug-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sep-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oct-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nov-05
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Incremental Aircraft
	 	 	 	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	 	 	 	 	 	 	 	 	 	 



Note:

[...***...]








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 






Exhibit A

Option CRJ-700/900

Delivery Schedule




	 	 	 	 	 	 
	Delivery	 	Option
	Month	 	CRJ-7/900
	
	 	

	 	Jan-04
	 	 	[...***...]	 
	 	Feb-04
	 	 	 	 
	 	Mar-04
	 	 	 	 
	 	Apr-04
	 	 	 	 
	 	May-04
	 	 	 	 
	 	Jun-04
	 	 	 	 
	 	Jul-04
	 	 	 	 
	 	Aug-04
	 	 	 	 
	 	Sep-04
	 	 	 	 
	 	Oct-04
	 	 	 	 
	 	Nov-04
	 	 	 	 
	 	Dec-04
	 	 	 	 
	Each calendar month
thereafter through Oct-07
	 	 	[...***...]	 
	 
	 	 	[...***...]	 



Note: [...***...]








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 






Exhibit B




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Cost per	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Departure	 	 	 	 	 	 	 	 
	 	 	Monthly	 	>3	 	Cost/	 	 	 	 
	 	 	Cost Per	 	Departures	 	Departure	 	 	 	 
	Aircraft Type	 	Station	 	per Day	 	PHX Hub	 	B19, DH8 and CRJ 200 Markets Covered by Model (as of 12/31/02)
	
	 	
	 	
	 	
	 	

	B19
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	DH8
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	CRJ 200
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	CRJ 700
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	CRJ 900
	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 	 	 	[...***...]	 
	Mexico Stations
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GDL (CRJ 200)
	 	 	[...***...]	 	 	 	 	 	 	 	 	 	 	 	 	 



Each month, overall station cost reimbursement (exclusive of station rent) will
be determined by the sum of:


               [...***...]








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.


 






 






Notes:

[...***...]








	[. . . *** . . .] Portions hereof have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment in
accordance with Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.