exhibit10-73.htm


    Exhibit
10.73

    


    CERTAIN
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE SYMBOL “[***]” HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO
OMITTED.

    


    


    


    


    


    January
13, 2009

    


    Mr.
Philip H. Trenary

    President
& CEO

    Pinnacle
Airlines Corp.

    


    Third
Amendment (this “Third Amendment”) to the Capacity Purchase Agreement dated as
of February 2, 2007

    


    Gentlemen:

    


    As you
are aware, Colgan Air, Inc. and Pinnacle Airlines Corp. (collectively “Contractor”) and
Continental Airlines, Inc. (“Continental”), are
each parties to a Capacity Purchase Agreement dated as of February 2, 2007 (as
amended by that certain First Amendment dated November 26, 2007 and that certain
Second Amendment dated April 30, 2008, the “CPA”).  Capitalized
terms not defined herein shall be defined as provided in the CPA.

    


    Continental
and Contractor each desire to further amend the CPA, effective as of the date
hereof, as follows:

    


    1.           By
replacing Schedule 1 and Appendix 1 to Schedule 3 of the CPA in their entirety
with the Schedule 1 and Appendix 1 to Schedule 3 that are attached to this Third
Amendment.

    


    2.           By
replacing Section 3.02 of the CPA with the following:

     

    “Section
3.02  Periodic
Adjustment of Base and Incentive Compensation.  The rates under
this Agreement set forth in Appendices 1 and
3 to Schedule 3
hereto, the Controllable Completion Factor Incentive Rate set forth in Appendix 2 to
Schedule 3
and the on-time arrival rate set forth in Appendix 4 to
Schedule 3
hereto shall remain in effect through the first Anniversary Date (being July 15,
2009), and thereafter shall be adjusted on each Anniversary Date (with the first
adjustment occurring on the first Anniversary Date), as follows: the new rates,
applicable beginning on such Anniversary Date, shall equal the rates in effect
on the immediately preceding date multiplied by the lower of (a) the Annual
CPI Change and (b) [***]; provided that the rate for each Covered Aircraft
for each day in the Term set forth on Appendix 1 to
Schedule 3
shall not be adjusted pursuant to this Section 3.02.”

    


    3.           By
replacing Section 8.01 of the CPA with the following:

    


    “Section
8.01 Term.  The base
term of this Agreement shall commence on the date the first Covered Aircraft is
placed into service under the terms and conditions of this Agreement and, unless
earlier terminated as provided herein, shall continue until August 31, 2020,
(the “Base Term”).  The term (the “Term”) shall include the Base Term
and any Wind-Down Period.  Notwithstanding the fact that the Base Term
extends until August 31, 2020 and notwithstanding the provisions of Section 2.01 or any
other provision of this Agreement, and unless this Agreement is earlier
terminated in accordance with the provisions hereof, the first 15 Covered
Aircraft shall exit service for Continental under this Agreement on the exit
dates indicated on Schedule 1 attached
hereto.”

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    4.           By
replacing Section 8.03(d) of the CPA with the following:

    


    (d) “Termination
at End of Term.  If the Agreement is terminated at the end of
the Base Term  (other than pursuant to Section 8.02), then
each of the Covered Aircraft for which a specific exit date is not set forth on
Schedule 1
attached hereto (e.g., for Covered Aircraft beginning with Covered Aircraft
position number 16 on such Schedule 1) shall be
withdrawn from the capacity purchase provisions of this Agreement on the first
day of the month that is the tenth (10th)
anniversary of the month in which such aircraft became a Covered Aircraft (and
such dates, either as specifically set forth on Schedule 1 or as provided in
this Section
8.03(d) shall be considered the applicable exit date for such Covered
Aircraft).”

     

    5.           By
replacing the first two sentences of Section 4.10 of the
CPA with the following:

    


    “Contractor
and Continental agree and acknowledge that each airport takeoff or landing slot,
route authority or other similar regulatory authorization (each, a “Slot or Route
Authorization”) held by Contractor and used for Scheduled Flights or any
other flights conducted by or on behalf of Continental is held for the benefit
and on behalf of Continental.  In that regard, at the request of
Continental made at any time and from time to time, including upon termination
of this Agreement, Contractor shall use its commercially reasonable efforts to
transfer to Continental or its designee, to the extent permitted by law, any
Slot or Route Authorization held by Contractor and used for Scheduled Flights or
any other flights conducted by or on behalf of Continental, in consideration of
the payment to Contractor of the net book value, if any, of such Slot or Route
Authorization on Contractor’s books; provided, that for the purposes of this
Section 4.10,
the net book value shall not exceed the actual out of pocket consideration paid
by Contractor with Continental’s written permission for such Slot or Route
Authorization (it being acknowledged though that there is no obligation on
Contractor to purchase any Slot or Route Authorization for Scheduled
Flights).”

    


    6.           By
adding the following sentence to the end of Section 2.b. of Appendix 4 to Schedule
3, as previously amended (which sentence was inadvertently removed as
part of the First Amendment to the CPA dated as of February 2,
2007):

        

    
      [***]

    

    


    
      
      

    

    7.           By
adding the following new Section 10.19 to the CPA:

    


    “Section 10.19 Continental’s Right of First
Refusal. (a) On or before [***], Continental will give Contractor a good
faith indication of interest as to whether Continental wishes to retain the
first fifteen (15) Covered Aircraft delivered into service hereunder beyond
their scheduled exit dates hereunder (and if Continental is interested in
retaining less than all of the first 15 Covered Aircraft, then Continental shall
specify how many of such Covered Aircraft Continental is interested in
retaining). If Continental so notifies Contractor that Continental is interested
in retaining any such Covered Aircraft, then Contractor and Continental agree to
use their respective good faith efforts to negotiate for a period of 90 days
after [***] for new rates and terms to extend this Agreement as to such Covered
Aircraft. (Each such Covered Aircraft as to which Continental notifies
Contractor that Continental has an interest in retaining shall be referred to in
this Section
10.19 as a “Subject Aircraft” and each such Covered Aircraft as to which
Continental does not indicate an interest in retaining as above provided shall
be referred to in this Section 10.19 as a
“Released Aircraft”). If Continental and Contractor are unable to reach mutually
agreeable terms for an extension of this Agreement as to any Subject Aircraft
within ninety (90) days, then Continental shall have the continuing rights
described in this Section 10.19 as to each Subject Aircraft (but such rights
shall not apply to any Released Aircraft and Contractor shall be free to
remarket any of the Released Aircraft to others).

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    (b)           Until
the date that is 210 days after the date that the first Subject Aircraft is
withdrawn from service for Continental hereunder and ceases to be a Covered
Aircraft hereunder, Contractor shall not enter into any agreement or accept any
offer to enter into any agreement that, if consummated, would result in the
sale, lease, assignment, transfer or other disposition, or the operation on any
other party’s behalf or benefit, including without limitation, pursuant to any
capacity purchase agreement, code share agreement or other airline charter
agreement or the like (but excluding any prorate agreement having industry
standard divisions of through fares and charges with no connect incentive
provisions, which, if requested by Continental, shall be verified by an
independent party familiar with industry proration methodologies reasonably
acceptable to Continental and Contractor, and having a term of at least three
(3) years), of any Subject Aircraft (or any combination of the foregoing)
(herein, any such transaction being called a “Transfer” and any
such agreement or offer being called an “Offer”), unless (x)
Contractor shall have provided written notice (an “Offer Notice”) to
Continental of such Offer, setting forth all material terms and conditions upon
which the proposed Transfer is to be made, and (y) a period of 30 Business Days
shall have expired after receipt of the Offer Notice by Continental (or, if
longer, until [***]) (the “Option Period”), or
Continental shall have earlier specifically declined the Offer in a writing
delivered to Contractor. Transmittal of the Offer Notice to Continental shall
constitute an offer by Contractor to consummate the Transfer with Continental on
the terms and conditions set forth in the Offer Notice; provided that, if the
Offer Notice contains non-financial terms and conditions that are not capable of
being matched by Continental on commercially reasonably terms, then Continental
and Contractor shall use commercially reasonable efforts to determine the
economic value of such terms and conditions (and the Option Period will be
deemed not to have commenced until the parties have so determined such economic
value), and Continental shall be entitled to accept the Offer Notice without
matching such terms and conditions, but rather by matching the economic value of
such terms and conditions.

     

    (c)           Continental
shall have the exclusive option during the Option Period to accept Contractor’s
offer to consummate the Transfer with Continental on the terms and conditions
set forth in the Offer Notice (subject to Section 10.19(b)
hereof), which option shall be exercisable during the Option Period by written
notice from Continental to Contractor.  During the Option Period,
Contractor shall fully cooperate with Continental in the determination of any
material data relevant to the Transfer.

    


    (d)           If
Continental shall accept the Offer in writing delivered to Contractor during the
Option Period, then Continental and Contractor shall consummate the Transfer
relating to the applicable Subject Aircraft on the terms and conditions of the
Offer (subject to Section 10.19(b)
hereof), within 30 Business Days after receipt of such written
notice.

     

    (e)           If
Continental does not accept the Offer in writing delivered to Contractor during
the Option Period, then Contractor shall be entitled to consummate the Transfer
within 90 Business Days after the end of the Option Period on terms and
conditions no more favorable to the transferee than those set forth in the Offer
Notice.  If the Transfer is not completed within such time period,
then Contractor must again comply with all of the provisions of this Section 10.19 prior
to making any Transfer relating to the applicable Subject Aircraft.

     

    (f)           Any
purported Transfer of an interest in a Subject Aircraft in violation of this
Section 10.19
shall be void and ineffectual ab initio.

    


    (g)           Contractor
and Continental further agree the process described in the above provisions of
this Section
10.19 shall also apply and be undertaken by Contractor and Continental
eighteen (18) months prior to the scheduled exit date of the 16th Covered
Aircraft delivered hereunder, with respect to the 16th Covered Aircraft
delivered hereunder and through the 30th Covered Aircraft delivered hereunder,
and if the option for additional option aircraft described in Schedule 1
attached hereto is exercised, the process described in the above provisions of
this Section
10.19 shall also apply and be undertaken by Contractor and
Continental  eighteen (18) months prior to the scheduled exit date of
the first such option aircraft delivered hereunder, with respect to such option
aircraft delivered hereunder.”

    


    Except as
specifically amended or modified hereby, the CPA shall remain in effect as
written.  This Third Amendment may be signed in
counterparts.

    


    Pinnacle
Airlines Corp. agrees and hereby confirms that the Guarantee executed by it in
connection with the execution of the original CPA in February of 2007 shall
apply with equal force and effect to all of Contractor’s obligations under the
CPA as amended from time to time, including as amended by this Third
Amendment.

    


    If
Contractor is in agreement with the above, please indicate its agreement by
having an authorized representative sign below in the space provided and return
a signed copy of this Third Amendment to the undersigned at the address
above.

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    Very truly yours,

    


    CONTINENTAL AIRLINES,
INC.

    


    By:           _____________________________

    Jeffery A. Smisek, President and
COO

    


    


    Agreed:                      COLGAN
AIR, INC

    


    By:           _________________________________

    Philip H. Trenary, Vice
President

    


    


    Agreed:                      PINNACLE
AIRLINES CORP.

    


    By:           _________________________________

    Philip H. Trenary, President &
CEO


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
 

    
      
        	
                SCHEDULE
      1

              


      

    

    
      
        	
                Aircraft Delivery
      Schedule

              


      

    

     

    
 

    
      
        	
                Number****

              	
                Aircraft
      Type**

              	
                Delivery
      Date*

              	
                Exit
      Dates

              
	
                 
      1

              	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	
                 
      2

              	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      3	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      4	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      5	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      6	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      7	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      8	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      9	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      10	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      11	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      12	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      13	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      14	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      15	
                Bombardier
      Q400

              	
                [***]

              	
                [***]

              
	 
      	 
      	 
      	 
      
	
                Number****

              	
                Aircraft Type**

              	
                Scheduled Delivery Dates 

                (also scheduled in-service
      dates)

              	
                Exit Dates***

              
	 
      1	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      2	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      3	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      4	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      5	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      6	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      7	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      8	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      9	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      10	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      11	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      12	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      13	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      14	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      15	
                Bombardier
      Q400

              	
                [***]

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      


      

    

    *            [***]

    **          [***]

    ***       
[***]

    ****     [***]


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    


     

    Appendix 1 to Schedule
3

     

    


    
      
        	
                Base
      Compensation Rates

              


      

    

     

    [***]