CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED.THE SYMBOL [***] HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO OMITTED.

 

THIS AMENDED AND RESTATED 2010 DELTA CONNECTION AGREEMENT (the “Agreement”), dated and made effective this 1st day of April, 2012 (the “Effective Date”), is entered into by and among Delta Air Lines, Inc., whose principal address is 1030 Delta Boulevard, Atlanta, Georgia  30320 (“Delta”), Pinnacle Airlines Corp., whose principal address is One Commerce Square Building, 40 South Main Street, Memphis, TN  38103 (“Parent”), and Pinnacle Airlines, Inc., whose principal address is One Commerce Square Building, 40 South Main Street, Memphis, TN  38103 (“Pinnacle”).

 

WHEREAS, Delta, Parent, Pinnacle and Mesaba Aviation, Inc., a Minnesota corporation and wholly-owned subsidiary of Parent (“Mesaba”), entered into that certain 2010 Delta Connection Agreement dated as of July 1, 2010 (the “2010 DCA”);

 

WHEREAS, effective January 4, 2012 upon transfer by Mesaba of certain of the Aircraft to Pinnacle, Mesaba assigned to Pinnacle and Pinnacle assumed from Mesaba (with the consent of Delta) all obligations of Mesaba under the 2010 DCA pursuant to that certain Assignment, Assumption and Consent Agreement dated as of January 4, 2012 by and among Pinnacle, Mesaba and Delta, and, as a result of such agreement, Mesaba ceased to be a party to the 2010 DCA;

 

WHEREAS, Delta, Parent, Pinnacle and certain other subsidiaries of Parent have entered into a commitment letter of even date herewith, pursuant to which Delta has agreed to provide the Pinnacle Debtors a $74,285,000 senior secured super-priority debtor-in-possession credit facility (the “DIP Credit Facility”), which may, subject to certain conditions, convert into an exit credit facility (the “Exit Loan”), all on the terms and conditions set forth in the Summary of Terms and Conditions attached to such commitment letter as Annex A (the commitment letter together with such term sheet, the “Commitment Letter”) in the event the Pinnacle Debtors elect to file a chapter 11 bankruptcy proceeding under title 11 of the United States Code (together the “Bankruptcy Cases”);

 

WHEREAS, Delta, Parent and Pinnacle have entered into a Third Amended and Restated Airline Services Agreement of even date herewith (as amended, modified or supplemented from time to time, and together with all exhibits, schedules and attachments thereto, the “Third Amended and Restated Airline Services Agreement”);

 

WHEREAS, Delta, Parent and Pinnacle have entered into Amendment No. Two to Delta Connection Agreement of even date herewith, pursuant to which the parties amended certain provisions of, and agreed to terminate early, that certain Delta Connection Agreement dated as of April 27, 2007 by and among Delta, Parent and Pinnacle (as amended, modified or supplemented from time to time, for so long as such agreement is in effect, and together with all exhibits, schedules and attachments thereto, the “2007 CRJ-900 Delta Connection Agreement”);

 

WHEREAS, Delta, Pinnacle Corp, Pinnacle and Mesaba have entered into a Setoff and Mutual Release of even date herewith (the “Setoff and Release”), the terms of which are incorporated herein by reference as though fully restated in this Agreement, pursuant to which the parties thereto agreed to an offset of certain amounts in dispute between the parties and to a mutual release of claims related to such disputed amounts; and

 

WHEREAS, the Parties desire to amend and restate the 2010 DCA and are entering into this Agreement contemporaneously with the execution and delivery of the Commitment Letter, the Third Amended and Restated Airlines Services Agreement, the Amendment No. Two to the 2007 CRJ-900 Delta Connection Agreement and the Setoff and Release.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties, intending to be legally bound, do hereby agree as follows:

 

 

 

Section 1.01 Definitions

 

.  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

1.	the terms as defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

2.	all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles; and

 

3.	the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article or other subdivision; and

 

4.	Exhibit A includes defined terms that have meanings assigned to them in such Exhibit.

 

“2007 CRJ-900 Delta Connection Agreement” shall have the meaning ascribed to such term in the recitals.

 

“2010 DCA” shall have the meaning ascribed to such term in the recitals.

 

“Accident” means [***].

 

“ACARS” means the Aircraft Communications Addressing and Reporting System, or any replacement system, which provides datalink communications between the Aircraft and Pinnacle with respect to operational matters.

 

“Affected Party” shall have the meaning ascribed to such term in Section 19.01.

 

“Affiliate” means, as applied to a Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person.  For purposes of this definition “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Aggregated CRJ900 Delta Connection Flights” means the Scheduled Flights and the “Delta Connection Flights” (as defined in the 2007 CRJ-900 Delta Connection Agreement) scheduled pursuant to the 2007 CRJ-900 Delta Connection Agreement.

 

“Air Navigation Fees” means fees or charges assessed on air operators by a governmental authority to recover the costs for the provisions or availability of air navigation services provided by such governmental authority.

 

“Aircraft” means the (i) forty-one (41) CRJ900 aircraft (including airframe, on-wing engines and other associated equipment described in the applicable Lease for such aircraft) in Pinnacle’s Delta Connection fleet as of the Effective Date as set forth on Schedule 1-A attached hereto and made a part hereof and (ii) any additional aircraft to be mutually agreed between the Parties (including airframe, on-wing engines and other associated equipment described in the applicable Lease for such aircraft), when and as such aircraft are added to Pinnacle’s Delta Connection fleet pursuant to Section 3.02.  Any Aircraft removed from Pinnacle’s fleet shall cease to be an “Aircraft” hereunder upon the date of removal of such Aircraft from scheduled operations (other than for maintenance).

 

“Aircraft Rental Expense” means the Basic Rent charged in the Leases between Delta and Pinnacle with respect to each of the Aircraft.

 

 “Airport Landing Fees” means all landing fees, aircraft rescue and fire fighting (ARFF) fees, airport user fees and other airfield assessments to the extent such fees and assessments are attributable to or a result of Regional Airline Services.

 

“APUs” shall have the meaning ascribed to such term in Section 3.02(iii).

 

“Bankruptcy Cases” shall have the meaning ascribed to such term in the recitals.

 

“Basic Rent” shall have the meaning ascribed to such term in the Leases.

 

 “Block Hour” means the period of time (in minutes) beginning when an Aircraft first moves from the ramp blocks in connection with an operated Scheduled Flight, a Non-Scheduled Flight or a Charter Flight and ending when the Aircraft next comes to a stop at the ramp blocks at any station or other point of termination as recorded by ACARS or another mutually agreed system, divided by sixty (60).

 

“Bombardier” shall have the meaning ascribed to such term in Section 3.04.

 

“Change of Control” shall have the meaning ascribed to such term in Section 10.03.

 

“Charter Flights” means revenue passenger flights using the Aircraft (other than Scheduled Flights).

 

“Colgan” means means Colgan Air, Inc., a Virginia corporation and wholly-owned subsidiary of Parent.

 

“COMAT” means company material, including but not limited to priority aircraft maintenance parts.

 

“Commitment Letter” shall have the meaning ascribed to such term in the recitals.

 

“Confidential Information” shall have the meaning ascribed to such term in Section 19.01.

 

“Contract of Carriage” shall have the meaning ascribed to such term in Section 2.15.

 

“CRJ900 DCA Aircraft” shall have the meaning ascribed to such term in Section 3.02(C).

 

“CRJ900 Spare Engines” means (i) the three (3) General Electric CF34-8C5 spare engines in Pinnacle’s Delta Connection fleet as of the Effective Date and (ii) any additional spare engines to be mutually agreed between the Parties when and as such spare engines are added to the fleet of Aircraft covered by this Agreement pursuant to Section 3.02(a)(ii).  Any CRJ900 Spare Engine removed from the fleet of Aircraft covered by this Agreement shall cease to be an “CRJ900 Spare Engine” hereunder upon the date of removal of such engine from scheduled operations (other than for maintenance).

 

“CSM” shall have the meaning ascribed to such term in Section 3.07.

 

“Cycle” means an actual takeoff at an origin city and landing at a destination city of an Aircraft in connection with a Scheduled Flight, a Non-Scheduled Flight or a Charter Flight.

 

“Data Communication Equipment” shall have the meaning ascribed to such term in Section 4.04.

 

“Delta Connection Carrier” means an airline operating regional jet and/or turboprop air transportation services as a Delta Connection carrier pursuant to a Delta Connection agreement or other similar airline services agreement between such airline and Delta.

 

“Delta Connection Safety Standards” shall have the meaning ascribed to such term in Section 2.09.

 

“Delta Identification” means any Identification designated by Delta from time to time in its sole discretion for use by Pinnacle in connection with the Regional Airline Services (including without limitation “Delta Connection” or any similar or successor name).

 

“Delta Indemnitee” shall have the meaning ascribed to such term in Section 9.02(b).

 

“Delta Lease” shall have the meaning ascribed to such term in Section 4.03.

 

“Designator” means “DL” or such other designator code designated by Delta from time to time in its sole discretion to identify Delta’s flights.

 

“DIP Credit Facility” shall have the meaning ascribed to such term in the recitals.

 

“Direct Costs” means Delta’s, Pinnacle’s or Parent’s, as applicable, actual paid or accrued cost incurred for goods and services without any, with respect to Direct Costs of Pinnacle, added surcharge for administrative or general overhead expenses of Pinnacle.

 

“Direct Expenses” shall have the meaning ascribed to such term in Exhibit A.

 

“Disclosing Party” shall have the meaning ascribed to such term in Section 19.01.

 

“DOT” means the United States Department of Transportation or any successor agency to its functions with respect to the regulation of air transportation.

 

“DOT Certification” means any and all certifications and approvals by the DOT, the FAA and other regulatory agencies required for Pinnacle to operate the Aircraft and to perform pursuant to the terms of this Agreement and all Governmental Regulations.

 

“EAS” shall have the meaning ascribed to such term in Section 2.01(b).

 

“Effective Date” shall have the meaning ascribed to such term in the preamble of this Agreement.

 

“Employee Pass Travel Privileges” shall have the meaning ascribed to such term in Section 4.01(b).

 

“Equipment” means the Aircraft, the CRJ900 Spare Engines, the QECs and the Spare APUs.

 

“Exchange Act” shall have the meaning ascribed to such term in Section 10.03.

 

“Exit Loan” shall have the meaning ascribed to such term in the recitals.

 

“FAA” means the Federal Aviation Administration or any successor organization or agency.

 

“Force Majeure Event” shall have the meaning ascribed to such term in Section 10.04.

 

“GAAP” means generally accepted accounting principles at the time prevailing in the United States for companies engaged in businesses similar to that of Pinnacle, consistently applied.

 

“Governmental Authority” means any foreign or United States federal or state (or any subdivision thereof), agency, authority, bureau, commission, department or similar body or instrumentality thereof, or any governmental court or tribunal.

 

“Governmental Regulations” means the rules and regulations prescribed by an airport authority at a Service City or by any local, state or federal unit of government having authority and jurisdiction to regulate the business and affairs of an air carrier having DOT Certification, including without limitation, the DOT, DOD and the FAA.

 

“Ground Handling Functions” means the ground handling functions performed in connection with the Regional Airline Services, including, but not limited to, the following:  (i) gate check-in activities, (ii) passenger enplaning/deplaning activities, (iii) sky cap and

 

wheelchair services, (iv) aircraft loading/unloading services, included but not limited to airside busing, (v) passenger ticketing, (vi) jetbridge maintenance, (vii) janitorial services, (viii) deicing services, (ix) pushback, tow or taxi, (x) airstarts, and (xi) aircraft overnight cleaning, including lavatory service and water service, but excluding turn cleaning unless otherwise directed by Delta.

 

“Hub Locations” means each of Atlanta (ATL), Cincinnati (CVG), Detroit (DTW), Los Angeles (LAX), New York-John F. Kennedy (JFK), New York-LaGuardia (LGA), Memphis (MEM), Minneapolis (MSP) and Salt Lake City (SLC) and any other airport which has an average fifty (50) or more departures per day that are operated by Delta or one or more Delta Connection Carrier under the Designator.  If any Hub Location has an average of fewer than fifty (50) departures per day that are operated by Delta or one or more Delta Connection Carrier under the Designator, such Hub Location shall not be considered a Hub Location for purposes of this Agreement until such Hub Location returns to having an average fifty (50) or more departures per day that are operated by Delta or one or more Delta Connection Carrier under the Designator.

 

“Identification” means a trade name, trademark, service mark, graphic, logo, distinctive color scheme or other trade dress, domain name, aircraft livery and/or other identification or indication of source or origin.

 

“Indemnified Party” shall have the meaning ascribed to such term in Section 9.02(g).

 

“Indemnifying Party” shall have the meaning ascribed to such term in Section 9.02(g).

 

“Indemnity Notice” shall have the meaning ascribed to such term in Section 9.02(g).

 

“Lease” means (i) the leases, subleases and/or sub-subleases (including any and all amendments thereto) in effect as of the Effective Date by and between Delta (or an Affiliate of Delta) and Pinnacle in respect of the Aircraft, (ii) the leases, subleases and/or sub-subleases (including any and all amendments thereto) in effect as of the Effective Date by and between Delta (or an Affiliate of Delta) and Pinnacle in respect of CRJ900 Spare Engines and QECs.

 

“Letter Agreements” shall have the meaning ascribed to such term in Section 3.04.

 

“Maintenance Facilities” shall have the meaning ascribed to such term in Section 4.03(i).

 

“Maintenance Program” shall have the meaning ascribed to such term in the Leases.

 

“Merger” shall have the meaning ascribed to such term in Section 10.03.“Non-Scheduled Flights” means all flights using the Aircraft which are not Scheduled Flights or Charter Flights.

 

“Obligations” shall have the meaning ascribed to such term in Section 20.01.

 

“OCC” shall have the meaning ascribed to such term in Section 2.11(a).

 

 “Operational Performance Standards” shall have the meaning ascribed to such term in Section 2.11(b).

 

“Paint Cycle” shall have the meaning ascribed to such term in Section 3.05.

 

“Party” means, respectively, each of Delta, Parent and Pinnacle.

 

“Performance Period” means each calendar month or portion thereof occurring during the Term of this Agreement.

 

“Person” means an individual, partnership, corporation, business trust, joint stock company, limited liability company, unincorporated association, joint venture or other entity of whatever nature.

 

“Pinnacle Identification” means any Identification selected by Pinnacle from time to time for use in connection with the business of Pinnacle, including without limitation “Pinnacle,” “Pinnacle Airlines” or any similar name.

 

“Pinnacle Indemnitee” shall have the meaning ascribed to such term in Section 9.02(c).

 

“Pinnacle Non-Cancelled Flight” shall have the meaning ascribed to such term in Section 2.11(a).

 

“Pinnacle Party” means, respectively, each of Parent and Pinnacle.

 

“Premises” shall have the meaning ascribed to such term in Section 4.03(a).

 

“QECs” means quick engine change kits.

 

“Regional Airline Services” means the provisioning by Pinnacle to Delta of Scheduled Flights and Charter Flights using the Aircraft, and all related activities, in accordance with this Agreement.

 

“Related Party Agreement” shall have the meaning ascribed to such term in Section 10.03.

 

“Representatives” shall have the meaning ascribed to such term in Section 19.01.

 

“Revenue Passenger” means a revenue passenger flown on a Scheduled Flight or a Charter Flight.

 

“Rockwell Avionics Agreement” shall have the meaning ascribed to such term in Section 3.06.

 

“Scheduled Flights” means revenue passenger flights (other than Charter Flights) using an Aircraft which, regardless of frequency, and published in the customary and applicable schedule distribution systems, such as the Official Airline Guide (“OAG”), or published by Delta in its own system timetables.

 

“Service Cities” means those cities identified from time to time by Delta to which Pinnacle shall provide Regional Airline Services.

 

“Setoff and Release” shall have the meaning ascribed to such term in the recitals.

 

“Spare APUs” shall have the meaning ascribed to such term in Section 3.02(iii).

 

“Substitute Flight” shall have the meaning ascribed to such term in Section 2.11(a).

 

“Support Agreements” shall have the meaning ascribed to such term in Section 3.9.

 

“Term” shall have the meaning ascribed to such term in Section 10.1.

 

“Termination Date” means the date on which this Agreement terminates pursuant to Article X.

 

“Third Amended and Restated Airline Services Agreement” shall have the meaning ascribed to such term in the recitals.

 

“Ticket Taxes and Fees” means any taxes pursuant to Sections 4261 or 4271 of the U.S. Internal Revenue Code of 1986, as amended or succeeded, on any amounts paid by customers for transportation of persons or packages by air, and any passenger facility charges, airport improvement fees, security fees or charges, stamp taxes, excise taxes, value-added taxes (in the nature of a sales or use tax), gross receipts taxes (in the nature of a sales or use tax), U.S. APHIS user and aircraft inspection fees, U.S. Customs user fees, U.S. Immigration user fees, and any other taxes and/or user fees imposed by any domestic or foreign governmental entity, airport or taxing authority on a per-passenger basis on any travel or on any amounts paid by customers for transportation of persons or packages by air.

 

“Transaction Taxes” shall have the meaning ascribed to such term in Section 8.02.

 

“TSA” means the United States Transportation Security Administration or any successor governmental organization or agency.

 

 

 

Section 2.01 Operation of Scheduled Flights

 

.

 

(a)           Subject to the terms and conditions of this Agreement, Pinnacle shall use the Aircraft to operate Scheduled Flights and Charter Flights as shall be designated by Delta from time to time in Delta’s sole discretion.  Delta, in its sole discretion, shall establish and publish all schedules for the Aircraft, including city-pairs served, frequencies, and timing of scheduled departures, taking into consideration the Aircraft type, maintenance requirements, crew  training and scheduling requirements, aircraft rotation requirements, applicable route and slot or other regulatory restrictions.  So that the information can be properly disseminated to Pinnacle for pilot and flight attendant staffing, and related operational requirements, Delta will, from time to time, notify Pinnacle of the preliminary schedule times, frequencies and related information for the Aircraft no later than seventy-five (75) days prior to the commencement of such schedule.  Pinnacle shall provide to Delta the proposed block times for the Aircraft, Aircraft performance analysis on operational items such as passenger and baggage limitations (together with relevant assumptions) and airfield appropriateness applicable to airports specified in Delta’s request for each of the city pair in the preliminary schedule from Delta no later than fourteen (14) days of Pinnacle’s receipt of the preliminary schedule times provided by Delta.   Notwithstanding the

 

above, upon written notice to Pinnacle, Delta may assume responsibility for establishing the Aircraft block times for Pinnacle.  Regardless of whether Delta or Pinnacle establishes the Aircraft block times, such block times shall be based on a block time reliability rate of between [***] and [***] or the block time reliability rate used for scheduling Delta mainline service, whichever is greater.  No later than forty (40) days prior to the commencement of such schedule, Delta will notify Pinnacle of the final schedule times, frequencies and related information for the Aircraft.  Where practical, Delta will collaborate with Pinnacle to determine mutually optimal schedules.  Pinnacle shall operate the Aircraft in the city pairs designated by Delta, subject to the frequency and other scheduling requirements established by Delta from time to time in accordance with this Section 2.01.  Delta and Pinnacle shall meet by October 1 each year to discuss an annual operating plan for the succeeding year with respect to the Aircraft, including Delta’s forecasted level of operations, block hours and cycles and the utilization of the Aircraft, and any other matters as Delta and Pinnacle shall determine.  Minimum turn times shall be set by Delta in conformity with standard industry practices and Aircraft type.(b)EAS Markets.  With respect to Essential Air Service (“EAS”) cities designated by Delta from time to time as a Service City hereunder:

(i) Pinnacle agrees to (A) bid on and enter into EAS agreements with the DOT, at the direction of Delta, (B) maintain and comply with its obligations under such agreements during the Term, (C) unless otherwise agreed by Delta in writing, provide air transportation services pursuant to any such agreement solely in connection with providing Regional Airline Services hereunder, and (D) refrain from modifying or amending the terms of such agreements without the prior written consent of Delta, and

 

(ii) In the event this Agreement expires or terminates in accordance with the provisions hereof (other than as a result of a breach by Pinnacle hereunder) prior to the expiration or permitted termination of any EAS agreement entered into by Pinnacle in accordance with the provisions hereof, then Delta will or will cause another carrier, to the extent permitted under the terms of such EAS agreement, to perform Pinnacle’s obligations under such EAS agreement.

 

Section 2.02 Use of Designator, DL Identification and Related Matters

 

.  Subject to Section 2.03 below and the applicable provisions of Article VII below, Pinnacle shall operate the Scheduled Flights and Charter Flights provided under this Agreement exclusively using the Designator and the designator code of any codeshare partner of Delta approved by Delta in its sole discretion.  The Scheduled Flights and Charter Flights shall be identified by Pinnacle solely with flight numbers assigned by Delta.  Subject to Section 2.03 below and the applicable provisions of Article VII below, Pinnacle shall use only the Delta Identification for the Aircraft (except as otherwise required by Governmental Regulations), and for all airport terminal facilities (such as gates, passenger waiting areas and jetways), signage, equipment, uniforms and advertising, promotional and business materials in any form or media that are used in connection with the Regional Airline Services; provided, however, all employee uniforms  of Pinnacle be determined by Pinnacle, provided that such uniforms shall at all times be consistent with Delta’s uniform standards in effect at the applicable time and subject to the approval of Delta (including approval of any use of the Delta Identification thereon) which shall not be unreasonably withheld.  Pinnacle shall not use Pinnacle’s Identification for the Aircraft (except as required by Governmental Regulation), airport terminal facilities (such as gates, passenger waiting areas and jetways), signage or advertising, promotional or business materials in any form or media that are

 

used in connection with the Regional Airline Services; provided, however, nothing in the foregoing prohibition shall preclude Pinnacle from using its Pinnacle Identification for general corporate purposes, responding to customer inquiries, on crew wings and employee service pins, and for purposes that are not covered by the foregoing prohibition and do not involve interaction with customers or passengers.

Section 2.03 Use of Other Designators

 

.  Pinnacle shall not use on the Aircraft or in connection with the Regional Airline Services hereunder the airline designator, Identification, or any other identifying feature of a foreign or United States airline other than Delta (except as otherwise required by Governmental Regulations), without the express prior written consent of Delta, or unless Delta directs Pinnacle to use such other designator, Identification, or identifying feature.  At the request of Delta, Pinnacle shall enter into such agreement(s) with another air carrier as may be necessary to implement code-sharing on the Scheduled Flights with such other air carrier.

 

Section 2.04 Personnel and Dispatch Control

 

.  Pinnacle shall be responsible for providing all crews (flight and cabin) to operate the Scheduled Flights and any Charter Flights to be operated by it and for all aspects (personnel and other) of dispatch control, including but not limited to load control.

 

Section 2.05 Inventory Management

 

.  Delta shall have complete control and discretion over all inventory management functions for all Scheduled Flights and Charter Flights operated pursuant to this Agreement, including, without limitation, overbooking levels, discount seat levels, and allocation of seats among the various fare buckets.   In performing such inventory management, Delta shall conform in all material respects to its own procedures and standards, taking into account the Aircraft type.

 

Section 2.06 Passenger Fares

 

.  Delta shall be the sole authority for filing tariffs for Scheduled Flights operated pursuant to this Agreement, and Delta shall establish all passenger fares for Scheduled Flights and Charter Flights operated pursuant to this Agreement.  All charges for filing of fares or tariffs for Scheduled Flights operated pursuant to this Agreement shall be paid by Delta.

 

Section 2.07 DOT Certification

 

.  Pinnacle has and shall maintain DOT Certification and all other permits, licenses, certificates and insurance required by any Governmental Authority and Article IX hereof to enable Pinnacle to perform the services required by this Agreement.

 

Section 2.08 Compliance with Governmental Regulations

 

.  All flight operations, dispatch operations and all other operations undertaken by Pinnacle pursuant to this Agreement shall be conducted and operated by Pinnacle in strict compliance with all Governmental Regulations, including, without limitation, those relating to security, the use and transportation of hazardous materials, flight crew and mechanic qualifications and licensing requirements, crew training and hours, and customs and immigration requirements.  All Equipment shall be operated and maintained by Pinnacle in strict compliance with all Governmental Regulations, Pinnacle’s own operations manuals and maintenance manuals and procedures, and all applicable equipment manufacturer’s instructions.  At all times, Pinnacle shall operate with the highest standards of care.

 

Section 2.09 Safety Standards

 

.  Pinnacle shall actively participate in and comply with the Delta Connection Safety Alliance and at all times during the Term (i) comply with Delta’s safety standards for Regional Airline Services including, without limitation, as set forth in the Delta Connection Carriers Non-Regulatory Safety Program Standards document and the Delta Connection Ground Operations Manual, provided, with respect to any changes Delta may make to such safety standards after the Effective Date, Delta shall, at its discretion, do one of the following: (x) pay directly for the incremental Direct Costs incurred by Pinnacle attributable to such change; (y) treat the incremental Direct Costs incurred by Pinnacle attributable to such change as a Direct Expense or (z) adjust the Aircraft Month Rate to reflect the incremental increase or decrease to the Direct Costs incurred by Pinnacle attributable to such change (ii) within a reasonable timeframe of inception of this Agreement, comply with and maintain all IATA Operational Safety Audit requirements and certification, Cockpit Aviation Safety Action Program (subject to consent of Pinnacle’s union representation and FAA), Flight Operations Quality Assurance (subject to consent of Pinnacle’s union representation and FAA) and all other safety initiatives applicable to the regional jet service industry, and (iii) Pinnacle shall be required to successfully complete a DOD audit under a regular bi-annual inspection program (collectively, as amended from time to time, the “Delta Connection Safety Standards”).

 

Section 2.10 Quality of Service

 

.           Delta policies, procedures, performance standards (including but not limited to Delta’s Sky Priority initiative) and means of measurement thereof concerning the provision of air passenger and air cargo services shall be applicable to all services provided by Pinnacle under this Agreement.  Pinnacle shall achieve, with respect to the provision of Regional Airline Services, at least the same quality of airline service as that provided by Delta, subject to limitations imposed by the type of Aircraft, its route network, the availability of equipment and facilities at the Service Cities and the performance by Delta of its obligations under this Agreement.  Pinnacle shall maintain adequate staffing levels to ensure at least the same level of customer service and operational efficiency that Delta achieves.  Pinnacle shall cooperate with Delta in any way necessary or desirable to provide such comparable level of customer service in connection with the operation of Regional Airline Services; and Pinnacle shall maintain new hire and recurrent training programs for all job descriptions, and such programs, as they pertain to customer service, shall be reasonably acceptable to Delta.

 

Section 2.11 Service Standards

 

.  Without limiting Sections 2.09 and 2.10, Pinnacle shall achieve the following specific performance standards with respect to any Performance Period during the Term:

 

(a) Performance Standards.

 

(i) Minimum Completion Factor.  Pinnacle shall maintain an aggregated completion rate with respect to the scheduled Aggregated CRJ900 Delta Connection Flights as set forth on Schedule 2.11 attached hereto and made a part hereof.  For purposes of this Agreement, the determination of completion rate of the scheduled Aggregated CRJ900 Delta Connection Flights shall be calculated on an all-in basis, such that all cancellations or uncompleted flights -- regardless of the reason -- shall be counted as cancelled flights which Pinnacle has not completed, with the following exceptions:

 

(A) Any Aggregated CRJ900 Delta Connection Flight that is cancelled by Pinnacle, but through coordination with Delta’s Operation Control Center (“OCC”) is successfully operated by either Delta or another operator within the Delta Connection program other than Pinnacle (i.e. Cancellation Codes 19A-F set forth on Exhibit C attached hereto and made a part hereof) (a “Substitute Flight”), shall be treated as a completed Aggregated CRJ900 Delta Connection Flight.  Pinnacle shall use its best efforts to coordinate Substitute Flights with Delta’s OCC when known cancellations are imminent;

 

(B) Any Aggregated CRJ900 Delta Connection Flight that is cancelled at Delta’s request, as determined by Delta’s OCC (i.e. Cancellation Code 19H set forth on Exhibit C);

 

(C) Any Aggregated CRJ900 Delta Connection Flight operated by Pinnacle with no revenue passengers and not completed within two (2) hours of its scheduled arrival time shall be considered a non-completed flight, unless at the direction of Delta’s OCC; and

 

(D) Any Aggregated CRJ900 Delta Connection Flight requested by Delta’s OCC to be cancelled for purposes of substitution (i.e. Cancellation Code 19G set forth on Exhibit C) shall be treated as a completed flight.

 

If Delta requests Pinnacle to cancel one or more scheduled Delta Connection Flights, Pinnacle shall comply with any such request within the time period reasonably requested by Delta.  In the event Pinnacle does not cancel any such flight, or does not cancel any such flight within the time period reasonably requested by Delta (each, a "Pinnacle Non-Cancelled Flight"), each Pinnacle Non-Cancelled Flight, for all purposes of this Agreement, shall not be regarded as a completed flight, and Delta shall not be obligated to pay Pinnacle any compensation or any other reimbursements in connection with such Pinnacle Non-Cancelled Flights.

 

(ii) Minimum On-Time Arrival Reliability.  Pinnacle shall maintain an aggregate percentage of on-time arrivals for all  Aggregated CRJ900 Delta Connection Flights as set forth on Schedule 2.11 attached hereto and made a part hereof.

 

(iii) Minimum ISM Score.  Pinnacle shall maintain an ISM score as set forth on Schedule 2.11 attached hereto and made a part hereof. The ISM score will be calculated by Delta taking a simple average of the Delta Customer Satisfaction Survey results for the Aggregated CRJ900 Delta Connection Flights during the applicable Performance Period in each of the following categories:

 

On-Board Timely & Accurate Information

 

Flight Attendant Helpful & Courteous

 

Flight Attendant Availability

 

Flight Attendant Professional Appearance

 

Clean Lavatory

 

Clean Cabin

 

Condition of Aircraft Interior & Cabin Appearance

 

For purposes of measuring Pinnacle’s ISM Score, the Performance Period shall be each calendar quarter during the Term.  Delta shall deliver Pinnacle’s ISM Score to Pinnacle not more than sixty (60) days following the end of the applicable calendar quarter.

 

(iv) Minimum On-Time Departure Reliability.  Pinnacle shall maintain an aggregate percentage of on-time departures for all  Aggregated CRJ900 Delta Connection Flights as set forth on Schedule 2.11 attached hereto and made a part hereof.

 

(b) Each of the requirements set forth in Section 2.11(a) above shall be defined as the “Operational Performance Standards.”  If Delta is concerned about Pinnacle’s performance in connection with any of the Operational Performance Standards, Pinnacle agrees to discuss with Delta such performance and potential ways to improve such performance at Delta’s request.  The Parties shall have ten (10) days to determine appropriate solutions and/or a corrective action plan, and Pinnacle agrees to diligently comply with the terms and conditions of any such solutions and corrective action plans that are mutually agreed by the Parties.

 

(c) Adjustments to Performance Standards.  The Parties recognize and agree that the performance standards set forth on Schedule 2.11 may be modified or adjusted by mutual agreement of the Parties hereto from time to time during the Term of this Agreement.

 

Section 2.12 Service Recovery

 

.  If requested by Delta, Pinnacle shall provide Revenue Passengers with service recovery and passenger amenities in accordance with Delta’s standard policies and procedures.  Delta shall reimburse Pinnacle for all Direct Costs incurred as a result of providing such service recovery and, upon request, Pinnacle shall submit to Delta supporting documentation with sufficient detail to allow Delta to verify the invoiced amount.

 

Section 2.13 In-flight Food, Beverages and Supplies

 

.  For all Scheduled Flights and Charter Flights, Delta shall provide, or cause to be provided, catering services, food and beverages for passengers and crews, all at Delta’s sole cost.  Pinnacle shall collect the appropriate amounts from passengers for all sales of in-flight food products and/or beverages in accordance with Delta’s policies and procedures, and any revenue associated with on-board sales of the food product and/or beverages shall be remitted to and the sole property of Delta.

 

Pinnacle shall institute and maintain adequate controls to efficiently manage the usage of in-flight food, beverages and supplies.  Pinnacle will also institute and maintain adequate controls to minimize the breakage or otherwise loss of product or revenue ("shrinkage") associated with in-flight food and beverage sales.  Pinnacle may be required to provide reports detailing the ratio of usage and shrinkage on an ad-hoc basis as requested by Delta from time to time.

 

Pinnacle shall be responsible for obtaining and maintaining, at its own expense (which expense shall not be a Direct Expense), all licenses necessary for the serving of in-flight food and beverages on Scheduled Flights and Charter Flights.

 

Delta shall furnish Pinnacle, at Delta’s sole cost, adequate supplies of its customary in-flight supplies including, but not limited to, the Delta in-flight magazine, flatware, dishes, cups, napkins, pillows, blankets, trash bags, sick sacks, lavatory supplies, creamers, swizzle sticks and sugar in a form similar or identical to that used by Delta.  Pinnacle will purchase any and all liquor to be provided to passengers on its Scheduled Flights or Charter Flights, and Delta shall reimburse Pinnacle for such liquor expenses and associated liquor taxes as a Direct Expense pursuant to Exhibit A.  All in-flight product and customer service specifications will be at the sole discretion of Delta.

 

Section 2.14 Exclusivity Arrangements

 

.  During the Term, except as otherwise directed or approved in writing by Delta, in Delta’s sole discretion, Pinnacle shall not operate more than [***] departures per day under its own flight designator code into or out of any Hub Location.

 

(a) If, during the Term, Pinnacle operates a jet aircraft certificated in the United States with a Maximum Gross Take Off Weight greater than [***] pounds and certificated for [***] or fewer passenger seats but configured with [***] or fewer passenger seats for itself or a carrier other than Delta or an Affiliate of Delta, then Pinnacle shall not operate any jet aircraft configured with between [***] and [***] passenger seats for itself or a carrier other than Delta or an Affiliate of Delta in any city pair that is served, on a non-stop basis by Delta or an Affiliate of Delta.

 

(b) Nothing in this Agreement shall preclude Delta from entering into code share, alliance or other commercial cooperation arrangements with any other airline or entering into similar or other arrangements with other carriers for the provisioning of regional airline services using CRJ900 aircraft or any other aircraft to or from the Hub Locations, the Service Cities or elsewhere.

 

(c) Except as set forth in Section 2.14(a) and (b) above, nothing in this Agreement shall preclude Pinnacle from operating an aircraft for another carrier other than Delta or an Affiliate of Delta, under the flight designator code of such other carrier, into any Hub Location or preclude an Affiliate of Parent other than Pinnacle from operating any aircraft for itself or a carrier other than Delta or an Affiliate of Delta to or from the Hub Locations, the Service Cities or elsewhere.

 

Section 2.15 Contract of Carriage

 

.  Pinnacle shall adopt as its own, for the Regional Airline Services, Delta’s Terms and Conditions of Contract of Carriage (“Contract of Carriage”), cargo tariffs, bills of lading, baggage liability policies and denied boarding compensation policies, each as amended from time to time, and be bound by their respective terms with respect to its operation of the Regional Airline Services.

 

 

 

Section 3.01 Use of the Equipment

 

.  Pinnacle agrees (a) that the Equipment shall be used only to provide and/or support the Regional Airline Services contemplated by this Agreement and (b) that the Equipment shall not be used by it for any other purpose without the prior written consent of Delta.

 

Section 3.02 Fleet Size and Related Matters

 

.  As of the Effective Date, Pinnacle’s Delta Connection fleet operated pursuant to this Agreement consists of the Aircraft.

 

(i) Unscheduled Aircraft.  Subject to Pinnacle’s approval, which shall not be unreasonably withheld, Delta shall determine the appropriate level of unscheduled Aircraft to be included in Pinnacle’s fleet of Aircraft from time to time.

 

(ii) Spare Engine Requirements.

 

(A)           Delta shall make available to Pinnacle for use on the Aircraft CRJ900 Spare Engines in the quantity set forth in Table 1 below for the applicable year during the Term.  Table 1 represents the full and complete obligation of Delta for spare engine support with respect to the Aircraft based upon known and projected LLP and service performance at the time of this Agreement.  The quantities specified in Tables 1 and 2, excluding operational Spare Engines, may change based upon operations, maintenance schedules and production planning by mutual agreement of the Parties.  The CRJ900 Spare Engines may be substituted at any time, at Delta’s sole discretion, by any engine maintenance agreement that contains a minimum serviceable spares support provision.

(B)           Pinnacle shall make available for use on the CRJ900 DCA Aircraft spare engines in the quantity set forth in Table 2 below for the applicable year during the Term.  Such spare engines may be substituted at any time, at Pinnacle’s sole discretion, by any engine maintenance agreement that contains a minimum serviceable spares support provision:

(C)           Cross Utilization of CRJ900 Spare Engines.  The CRJ900 Spare Engines, together with the engines on the Aircraft as of the Effective Date, may be cross utilized between the Aircraft and the CRJ900 aircraft operated by Pinnacle pursuant to the 2007 CRJ900 Delta Connection Agreement (the “CRJ900 DCA Aircraft”), but no other aircraft, provided that each of the following conditions are, and remain, satisfied:

If it is determined, in Delta’s commercially reasonable judgment, that any of the above conditions is not satisfied, then Delta may, at it’s sole discretion, upon 30 days advance notice to Pinnacle require that neither the CRJ900 Spare Engines, nor the engines on the Aircraft as of the Effective Date, may be utilized on any of the CRJ900 DCA Aircraft, and within 90 calendar days of the date of such notice, Pinnacle must comply with Condition 4 above.

 

(D)           Delta will provide additional spare engines as reasonably required by Pinnacle in addition to the engines set forth in Tables 1 and 2 above; provided, however, Delta shall have no obligation to provide any such additional spare engines if Pinnacle’s requirement for additional spare engines is due to or as a result of any of the following:

 

(i)           engine removals due to any maintenance performed unreasonably in advance of the time such maintenance is required in accordance with the Maintenance Program and not mutually agreed to by Delta;

 

(iii)            inadequate engine maintenance by Pinnacle or Pinnacle’s failure to  follow procedures approved by the OEM or Delta. 

 

(E)           If Delta and Pinnacle mutually agree that additional spare engines are required due to an operational necessity for an extended period of time, Pinnacle will fully share engine maintenance and scheduling practices and will work with Delta to change or adjust these practices to minimize spare engine support.

 

(iii) Spare APUs.

 

(A) Delta shall make available to Pinnacle for use on the Aircraft spare auxiliary power units (“APUs”) in the quantities during the corresponding years as set forth in the following Table 3 (the “Spare APUs”).  Table 3 represents the full and complete obligation of Delta for spare APU support with respect to the Aircraft based upon known and projected LLP and service performance at the time of this Agreement.  The quantities specified, in Tables 3 and 4 excluding operational Spare APUs, may change based upon operations, maintenance schedules and production planning by mutual agreement of the Parties.  The Spare APUs may be substituted at any time, at Delta’s sole discretion, by any APU maintenance agreement that contains a minimum serviceable spares support provision.

 

.  If Delta possesses any manufacturer, supplier or servicer credits and Pinnacle intends to acquire spare parts or inventory from Bombardier or General Electric, Pinnacle shall purchase from Delta such credits at the face value of such credits in an amount up to to the amount to be purchased from Bombardier or General Electric, as applicable (but only to the extent Bombardier or General Electric, as applicable, will accept such credits).  Delta shall provide Pinnacle notice from time to time upon Delta obtaining eligible credits that are available pursuant to this Section 3.11.  Following notification by Pinnacle to Delta of Pinnacle’s intent to utilize credits, Delta shall deduct the amount of such credits from the next payment due to Pinnacle hereunder, and on such date, Delta shall deliver to Pinnacle a credit memorandum equal to the amount of such credits purchased by Pinnacle.

 

(b) Travel Privileges.  As of the Effective Date, Pinnacle shall be entitled to make available for its employees, the travel privileges set forth on Exhibit B attached hereto in accordance with the terms and conditions set forth therein (the “Employee Pass Travel Privileges”).  Notwithstanding the foregoing, [***], such travel privileges shall be substantially similar to those travel privileges provided by Delta to employees of other Delta Connection Carriers.    Delta shall have the right, in its sole discretion, to change, alter, modify, reduce or discontinue the Employee Pass Travel Privileges at any time upon no less than sixty (60) days prior written notice to Parent.

(a) Ground Handling.  With respect to the Scheduled Flights and Charter Flights, Delta shall be responsible for all Ground Handling Functions at all Service Cities.  Delta at its option may: (i) perform all Ground Handling Functions directly, (ii) contract with Pinnacle pursuant to the Airport Services Master Agreement between Pinnacle as Handling Company and Delta dated as of December 2, 2008, as amended from time to time or (iii) sub-contract performance of the Ground Handling Functions to an Affiliate of Delta or a third party vendor, or a combination of any of the foregoing.

(b) Weather-event Recovery.  With respect to recovery from weather events that disrupt the Regional Airline Services operated by Pinnacle, Pinnacle’s System Operations Control shall coordinate with Delta’s System Operations Control for returning to normal operations.

(a) Airport Facilities.  During the Term and subject to the terms and conditions of this Section 4.03, Delta shall provide Pinnacle with access on a non-exclusive, shared use basis to a portion of the airport premises and facilities leased by Delta pursuant to a use and lease agreement or other agreement with the applicable airport authority or other third party (each, a “Delta Lease” and collectively, the “Delta Leases”) at each of the Service Cities served by Pinnacle hereunder and at other airport locations designated in writing by Delta from time to time, the types, location and square footage of which shall be designated in writing by Delta from time to time (together with any other premises and facilities of Delta to which Pinnacle may have access for purposes of this Agreement, the “Premises”). Delta may, at its expense, relocate any of the Premises used by Pinnacle at anytime during the Term.  The Premises shall be used by Pinnacle solely for the performance of Regional Airline Services hereunder and for no other purpose except as otherwise approved in writing by Delta.  In the event Delta  determines that Pinnacle requires additional facilities at any Service City for the performance of Regional Airline Services hereunder, Delta may elect (i) to lease or acquire the right to use such facilities and, in such event,  Delta shall provide Pinnacle with access to such facilities on the terms and conditions set forth in this Section 4.03 and such facilities shall be deemed to be “Premises” hereunder, or (ii) to require Pinnacle to lease or acquire the right to use such facilities and, in such event Pinnacle shall ensure that any use and lease agreement or other agreement entered into with the applicable airport authority or other third party with respect to such facilities contains a provision that allows such agreement to be assigned by Pinnacle to Delta without the

consent of such airport authority or other third party upon expiration or termination of this Agreement, the withdrawal of Scheduled Flights from such airport, or upon written notice from Delta to Pinnacle, provided that if the consent of such airport authority or other third party is required by contract or Governmental Regulations, Pinnacle will use its best efforts to obtain such consent at the time of any such termination, withdrawal or written notice.  Upon the expiration or earlier termination of this Agreement, the withdrawal of Scheduled Flights from any such airport or upon receipt of written notice from Delta, promptly upon Delta’s request, Pinnacle shall assign all of its right, title and interest in and to such agreement to Delta, provided that such assignment does not give rise to an event of default under such agreement, that Pinnacle is released from obligations arising under such agreement from and after the date of assignment, and, to the extent consent of the airport authority or other third party is required, Pinnacle is able to obtain such consent after using its best efforts to obtain the consent of the airport authority or other third party to any such assignment do so.

(b) Facilities Rent.  Except as otherwise provided herein, with respect to each Service City served by Pinnacle hereunder, Pinnacle shall not be obligated to pay any portion of the rent or facility charges payable by Delta pursuant to the applicable Delta Lease, provided that Delta may elect, with respect to one or more such Service Cities, to cause Pinnacle to pay the rent directly to the lessor of such Premises and Delta shall reimburse Pinnacle for the Direct Costs incurred by Pinnacle as a result of such election.  Pinnacle shall submit to Delta supporting documentation reasonably requested by Delta with sufficient detail to allow Delta to verify the accuracy of the invoiced amount.

(c) Airport Landing Fees.  With respect to Airport Landing Fees payable with respect to any flight operated by Pinnacle pursuant to this Agreement to or from any Service City or other location to which a such flight to or from any Service City is diverted, Delta may elect to pay such fees directly to the applicable airport authority based on the reports submitted by Pinnacle to Delta or such airport authority pursuant to Section 4.03(g) hereof or, at Delta’s election (or Delta’s failure to pay such fees), to cause Pinnacle to pay directly to the applicable airport authority such landing fees in the amounts required pursuant to the applicable Delta Lease or any operating permit or other agreement between Pinnacle and such airport authority with respect to such flight and, in such event, such fees shall constitute Direct Expenses of Pinnacle hereunder for which Pinnacle shall be reimbursed by Delta pursuant to Exhibit A, Section 1.03 hereof.

(d) Passenger Facility Charges.  Delta shall be responsible for the collection and remittance in accordance with the applicable Delta Lease of all passenger facility charges, if any, with respect to flights operated by Pinnacle in accordance with this Agreement.

(e) Other Airport Charges.  Except as otherwise provided in this Section 4.03, Pinnacle shall be responsible for the payment of all fees and expenses, if any, incurred by Delta or Pinnacle pursuant to the applicable Delta Lease or any operating permit or similar agreement between Pinnacle and the applicable airport authority with respect to any flight operated by Pinnacle in accordance with this Agreement, including without limitation, employee badging fees, employee parking fees, license fees, fees or penalties on payments made after the due date as a result of an action or inaction of Pinnacle, and repair and maintenance costs and expenses.  Such fees and expenses shall not constitute Direct Expenses of Pinnacle and Delta shall not be obligated to reimburse Pinnacle for such fees and expenses.

(f) Signatory Status.  Upon the request of any airport authority at any Service City served by Pinnacle hereunder and subject to Delta’s prior written consent, Pinnacle shall enter into an operating permit or similar agreement with such airport authority to permit Pinnacle to serve such Service City.  In all such events, subject to Delta’s prior written consent, Pinnacle shall take all actions required to obtain signatory status at any Service City served by it hereunder and shall perform all conditions required by the applicable airport authority to obtain such status, including without limitation the posting of a bond or letter of credit and furnishing evidence of insurance coverage as may be required by such airport authority, provided that any expenses incurred in obtaining such signatory status shall constitute Direct Expenses of Pinnacle hereunder for which Pinnacle shall be reimbursed by Delta pursuant to Exhibit A, Section 1.03 hereof.  In the event Pinnacle qualifies as a signatory carrier at any Service City served by it hereunder, Pinnacle agrees to vote on any matter submitted to the signatory carriers at such Service City for a vote as directed by Delta. All costs and continuing liabilities, including fiscal year shortfall adjustments, associated with Pinnacle’s obligations under such operating permit or similar agreement to pay landing fees, common use charges or other rates, charges and fees to the airport operator the Signatory obligations of Pinnacle shall be included in Direct Expense during the Term, and any such obligations payable after the term of the Agreement shall be paid upon invoice from Pinnacle to Delta. If Pinnacle is unable to terminate the operating permit or similar agreement conferring signatory status without cause and without penalty effective upon termination of the Agreement, if requested by Pinnacle, Delta will cooperate with Pinnacle to transfer Pinnacle’s signatory obligations to Delta, when permitted by the airport authority.

(g) Reporting Obligations.  During the Term, Pinnacle shall prepare and timely deliver to Delta or to the applicable airport authority at each Service City, as directed by Delta, all reports and other information required to be provided pursuant to each of the Delta Leases with respect to any flight operated by Pinnacle hereunder, including without limitation all landing and passenger data.  In the event Delta incurs any fees, fines, penalties or expenses as a result of any failure to deliver or delay by Pinnacle in the delivery of such information, Delta shall have the right to deduct any such fee, fine, penalty or expense from amounts owed by Delta hereunder.

(h) Invoice Processing; Accounting Entries.  With respect to those Service Cities designated by Delta from time to time during the Term, Pinnacle shall be responsible for reviewing all invoices received by it or Delta for fees and charges submitted by the applicable airport authority, reconciling all amounts set forth on such invoices, certifying to Delta that such amounts are payable in accordance with the applicable Delta Lease, and obtaining payment authorization with respect to such fees and charges.

 

(i) Maintenance Facilities.  During the Term, Pinnacle shall be responsible for obtaining and maintaining adequate maintenance facilities required for the maintenance of all Equipment operated or utilized in connection with the performance of services pursuant to this Agreement (the “Maintenance Facilities”).  With respect to any agreement to purchase, lease, sublease or otherwise obtain the use of any Maintenance Facilities or any amendment to any such existing agreement entered into by Pinnacle after the Effective Date, Pinnacle shall obtain Delta’s written consent prior to entering into any such agreement or amendment and Delta shall be entitled to elect to enter into any such agreement or amendment in its own name in place of

 

Pinnacle and, in any such case, Delta shall grant to Pinnacle the right to use such facilities on the terms and conditions set forth in this Agreement.

(j) Signage.  Subject to Governmental Regulations and the provisions of the applicable Delta Lease, Pinnacle shall display at all locations within the Premises such signage or other forms of advertising as Delta may specify.  All signage utilizing a Delta trademark shall be provided by Delta at its sole cost and expense, shall remain the property of Delta and any use thereof shall be subject to the provisions of Article VII hereof.  Pinnacle shall not, without the prior written consent of Delta, use any other trademarks on any signage or other forms of advertising displayed on any Equipment or at any facility used by Pinnacle to provide Regional Airline Services hereunder or used to identify or promote the Regional Airline Services, except as may be required by Governmental Regulations.

 

(k) Subject to Delta Lease.  Any right granted to Pinnacle hereby to use any Delta facilities is in all respects subject and subordinate to the terms and conditions of the applicable Delta Lease and Pinnacle shall comply with such Delta Lease in all respects to the extent applicable to Pinnacle’s use of the Premises.  Pinnacle shall not commit or permit to be committed any act or omission that shall violate any term or condition of any of the Delta Leases or any applicable law, rule or regulation, and shall make no alterations, additions or improvements to such facilities.  Pinnacle shall obtain and maintain in good standing any licenses, permits, approvals or consents required in connection with its use of such facilities.  Pinnacle shall maintain the Premises used by it in a neat, clean, and sanitary condition and shall not permit trash, rubbish, or waste to accumulate at such Premises.  Pinnacle shall dispose of all such materials, including without limitation hazardous waste materials, in accordance with all applicable laws, rules, regulations, ordinances and Delta’s Environmental Programs Manual.  Should Pinnacle cease to provide Regional Airline Services at any Service City where the Premises are located, Pinnacle shall return the Premises to Delta in their original condition, subject only to ordinary wear and tear, and Pinnacle shall properly remove and dispose of all trash, rubbish and waste.

 

(l) No Warranties.  Any equipment and facilities provided to Pinnacle by Delta hereunder are provided AS-IS, WHERE-IS, AND WITH ALL FAULTS.  Delta makes no warranties, express or implied with respect to merchantability, fitness for intended use or condition of any equipment or facilities provided hereunder.  IN NO EVENT SHALL DELTA’S LIABILITY OF ANY KIND WITH RESPECT TO SERVICES, EQUIPMENT OR FACILITIES PROVIDED TO COMPANY UNDER THIS AGREEMENT INCLUDE ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

 

(m) Separate Facilities Use Agreement.  Should the airport operator or other third party lessor under the Delta Lease at any Service City require a separate facilities use agreement between Delta and Pinnacle with respect to the Premises, Pinnacle shall sign such agreement prepared by Delta containing terms and conditions generally consistent with the terms and conditions of this Agreement.

 

Section 4.04 Data Communications

 

. If necessary for Pinnacle’s operation of the Regional Airline Services hereunder, Delta shall provide to Pinnacle at all Service Cities served by Pinnacle, at Delta’s sole expense, data circuit lines, any required data networking equipment, the use of computer reservation terminals, printers and modems, including hardware, software

 

and maintenance support for such equipment (the “Data Communication Equipment”).  Such Data Communication Equipment shall be of the same type and quality as that used by Delta in its airline operations.  In connection with the commencement of Regional Airline Services at a new Service City,  if necessary for Pinnacle’s operation of the Regional Airline Services hereunder, Delta will provide Pinnacle with Delta’s standard Data Communications Equipment at Delta’s sole expense.

Section 4.05 Security

 

.  Delta shall be responsible for the systems which are programmed to perform all the Department of Homeland Security and foreign government requirements relating to watchlist vetting, CAPPS, and passenger APIS submission.  Delta and Pinnacle’s personnel are each responsible to ensure all required government and airline security and customs/immigration procedures are followed and each Party will ensure that its staff has received the appropriate training as required by applicable law and by the carrier.

 

In regard to security investigations, Pinnacle will cooperate with Delta during the investigation of alleged or actual security compliance violations, security issues, fraud, theft, vandalism, and other possible criminal acts involving any employee, passenger or agent of Pinnacle or relating to the Regional Airlines Services provided by Pinnacle hereunder.

 

Airport security and passenger screening is conducted by the TSA as of the Effective Date.  To the extent airlines have responsibility for airport security and/or passenger screening Delta shall be responsible for Pinnacle’s allocated share with respect to the Regional Airline Services only of all maintenance expenses associated with all security equipment and Pinnacle’s allocated share of all personnel expenses (including overtime) associated with the operation of such equipment and all airport security-related functions, including, without limitation, passenger screening and activities related to security directives imposed by Governmental Regulations.  Notwithstanding the foregoing, the parties acknowledge and agree that should the U.S. government augment or change the directives, requirements, processes, procedures or the activities related to passenger screening as may be imposed by future Governmental Regulations, then the parties will negotiate in good faith regarding any changes to this Agreement that may be necessary as a result.

 

Section 4.06 Reservation Services

 

.  During the Term, Delta shall handle, at its sole expense, reservations for all passenger air transportation on Scheduled Flights operated pursuant to this Agreement.  Reservations shall be handled in the same manner and subject to the same standards utilized by Delta for its own reservations.  All reservations shall be made in the name of Delta unless otherwise required by Governmental Regulations.  Delta shall be sole owner of any customer or passenger data relating to the Scheduled Flights and related reservation services.  However, upon the reasonable request of Pinnacle, Delta will share with Pinnacle such customer or passenger data relating to the Scheduled Flights and related reservation services when reasonably necessary solely for the purpose of resolving Customer/Passenger complaints or claims, or if Pinnacle is required to produce such customer or passenger data relating to the Scheduled Flights and related reservation services in response to a valid subpoena, order of a court or other governmental body of the United States or any political subdivision thereof (provided, however, that Pinnacle shall have given notice to Delta and shall allow Delta to make a reasonable effort to obtain a protective order requiring that such information so disclosed shall be used only for the purposes for which the order was issued) or if otherwise required by law, or if necessary to establish rights or enforce obligations under this Agreement.  Pinnacle shall not

 

have any right to disclose or use such information other than as expressly provided herein or otherwise permitted by Delta in writing.

Section 4.07 Baggage Claims and Baggage Delivery

 

.  With respect to baggage claims and delivery costs in connection with the provision of the Regional Airline Services, Delta shall be responsible for such claims and any Direct Costs incurred by Pinnacle.

 

Section 4.08 Ticketing Services and Ticketing Procedures

 

.

 

(a) Frequent Flyer Program.  Pinnacle agrees to accept Delta frequent flyer tickets and to provide transportation services pursuant to such tickets at no charge to Delta.  All travel under the frequent flyer program solely on Pinnacle shall entitle a passenger to such credit as shall be equivalent to the credit offered on Delta for comparable mileage segments.  Delta will provide such credit to members of its frequent flyer program who travel on Pinnacle at no charge to Pinnacle.

 

(b) Ticketing Costs.  All travel agency commissions attributable to Scheduled Flights shall be Delta’s expense.  Delta shall pay all computer reservation system fees attributable to passengers on Scheduled Flights.

 

Section 4.09 Air Cargo Handling Services

 

.  With respect to the Scheduled Flights, Delta shall be responsible for all air cargo handling services at all Service Cities.  Delta at its option may: (i) perform all air cargo handling functions directly; (ii) contract with Pinnacle pursuant to the Airport Services Master Agreement between Pinnacle as Handling Company and Delta dated as of December 2, 2008, as amended from time to time or (iii) sub-contract performance of the air cargo handling functions to an Affiliate of Delta or a third party vendor, or a combination of any options above.

 

Section 4.10 Air Cargo Acceptance & Claims

 

.

 

(a) At each location at which Delta operates ticketing services, Delta shall at no charge to Pinnacle accept air cargo for shipment on flights to be operated by and over the routes of Pinnacle or Delta. Delta shall issue appropriate documentation in accordance with current operations procedures for all shipments.

 

(b) For purposes of air cargo claims, Delta will be responsible for all air cargo claims arising from the Regional Airline Services performed hereunder, provided that all loss/damage/delay claims involving routing on both Delta and Pinnacle will be determined and managed by Delta’s cargo claims department.  If Delta determines Pinnacle is liable for the loss, Delta will invoice Pinnacle and provide sufficient documentation as to Delta’s investigation and conclusion for the claim loss, and the claim will be forwarded to Pinnacle for review and reimbursement to Delta.  If Pinnacle disputes the invoice, Pinnacle shall provide written notice to Delta within thirty (30) days from the date of invoice and Pinnacle’s obligation to pay the invoice shall be suspended until the dispute is resolved.

 

Section 4.11 Use of COMAT

 

.  Delta and Pinnacle shall each provide to the other, at no cost to the other and on a non-discriminatory basis, access to its respective COMAT system for the movement and acquisition of priority aircraft maintenance parts and other company material.  Delta’s failure to deliver timely a maintenance component via COMAT, whether timely or at all,

 

shall not cause an affected Scheduled Flight to be excluded in calculating Pinnacle’s on-time performance and completion factors.  Wherever possible, bookings should be made in advance, and all access shall be consistent with Delta’s and Pinnacle’s respective published COMAT procedures and policies, as amended from time to time.

Section 4.12 Slots and Route Authorities

 

.  If Delta schedules Pinnacle to operate a Delta Connection Flight to a location for which Pinnacle requires an airport takeoff or landing slot or route authority, Delta will either (i) provide such airport takeoff or landing slot or route authority to Pinnacle or instruct Pinnacle to obtain such airport takeoff or landing slot or route authority and Delta shall reimburse Pinnacle for any reasonable out-of-pocket costs and expenses incurred by Pinnacle in obtaining such airport takeoff or landing slot or route authority.  During the Term or upon the expiration or termination of this Agreement, Delta may, in its sole discretion, require Pinnacle to transfer to Delta or its designee at no charge any airport takeoff or landing slots, route authorities or other regulatory authorities as Delta shall designate which have been or are being used for Regional Airlines Services under this Agreement, provided that Pinnacle does not require such airport takeoff or landing slot, route authority or other regulatory authority for the provision of Regional Airline Services pursuant to this Agreement.

 

Section 4.13 Emergency Response and Family Assistance Agreement

 

.  Delta shall enter into a separate written agreement with Pinnacle with respect to emergency response and family assistance services to be provided to Pinnacle by Delta at no net cost to Pinnacle (after receipt of any insurance claim proceeds) in connection with the Regional Airlines Services operated under this Agreement.

Section 5.01 Revenues

 

.  Pinnacle acknowledges and agrees that all revenues resulting from the sale and issuance of passenger tickets and cargo air waybills associated with the operation of the Aircraft and all other sources of revenue associated with the operation of the Aircraft are the sole property of Delta, including without limitation ticket change fees and other fees or charges which are applicable pursuant to Delta’s tariffs, fuel surcharges, governmental subsidies, EAS subsidies, revenue guarantees, unaccompanied minor fees, liquor charges, snack/beverage services, SkyMall products and services and other in-flight products, luggage fees, advertising revenue, excess baggage fees and nonrevenue pass travel charges.  All EAS subsidies received by Pinnacle shall be paid to Delta promptly upon receipt and in any event within five (5) business days after such receipt.

 

Section 5.02 Payments to Pinnacle

 

.  Delta will pay Pinnacle for the Regional Airline Services in accordance with Exhibit A hereto.

 

Section 5.03 Billing

 

.  Delta and Pinnacle shall bill each other on a monthly basis (or as otherwise agreed) in respect of amounts owed to each other under this Agreement not contemplated under Exhibit A.  If such billed items are not paid by the applicable Party within twenty (20) days of the invoice date, the aggregate amount of any undisputed unpaid items may be offset against or included, as applicable, in the next scheduled payment pursuant to Exhibit A.  Disputed amounts must be paid when the dispute is resolved to the satisfaction of the Parties, provided that such amount may be set off against or included, as applicable, in the next

 

scheduled payment pursuant to Exhibit A if the formerly disputed amount is not paid within seven (7) days of resolution.  Delta may also offset against the next scheduled payment pursuant to Exhibit A the amount of any payment owed to Delta or an Affiliate of Delta (including, without limitation, those under any Lease, the 2007 CRJ-900 Delta Connection Agreement, the SAAB Agreement and the Second Amended and Restated Airline Services Agreement) with respect to which Pinnacle or any Affiliate of Pinnacle or Parent shall have defaulted and shall have failed to cure before the expiration of any applicable cure period.

Section 6.01 Reporting Obligations

 

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(a) Certain Notices to Delta.  In addition to the other reporting requirements set forth in this Agreement, Parent shall give written notice (within ten (10) business days) to Delta of (i) any litigation involving an uninsured claim of more than $1,000,000 against any Pinnacle Party, (ii) any proceeding before any Governmental Authority which, if adversely determined, would materially and adversely affect the financial condition, affairs, operations or prospects of any Pinnacle Party, including but not limited to a copy of any significant FAA enforcement or civil penalty action, (iii) any in-flight injuries resulting in severe bodily harm and (iv) any other matter which would materially and adversely affect the financial condition, affairs, operations or prospects of any Pinnacle Party or its ability to perform its obligations under this Agreement.  Pinnacle shall also provide to Delta not later than the last day of each month the completion factor and on-time factor for the prior month with respect to the Scheduled Flights operated pursuant to this Agreement.

 

(b) Financial and Reporting Covenants.  Parent shall promptly provide to Delta notice of and adequate information regarding any material weaknesses noted in any management letters received by any Pinnacle Party from its independent auditors and such company’s responses thereto.

 

Section 6.02 Audits

 

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(a) Audit of Costs, Operations and Service Levels.  The Pinnacle Parties shall maintain complete and accurate books and records to support and document all revenues, costs and expenses related to the Aircraft and the Regional Airline Services provided hereunder, in accordance with GAAP and in accordance with the accounting policies and procedures used by the Parties to develop the payment rates set forth in Section 1.02 of Exhibit A (as amended or reset from time to time) and the Direct Expenses.  Delta’s in-house finance staff and any independent consultants selected by Delta shall be entitled, following reasonable notice to Pinnacle, to audit and inspect the respective books and records of the Pinnacle parties relevant to the services provided hereunder, the service levels achieved, and the determination of charges due pursuant to this Agreement for the sole purposes of (i) prospectively adjusting the Aircraft Month Rate, Block Hour Rate,  and Cycle Rate in connection with any rate reset pursuant to Exhibit A hereof and/or (ii) auditing any Direct Expenses or incentive compensation due or paid hereunder.  Any such audit will be conducted during regular business hours and be paid for by Delta unless such audit determines that one or more Pinnacle Party owes Delta in excess of

 

$500,000, in which case Pinnacle shall pay Delta the costs and expenses incurred by Delta in connection with such audit.

(b) Inventory Audits.  At Delta’s request, during the Term Pinnacle and Delta (or its designee) shall conduct periodic inventory audit of all spare parts, tooling and equipment owned by Delta and leased to Pinnacle or owned by Delta and supplied to Pinnacle.  In conducting such audit, the applicable Parties shall tabulate the quantity and type of all spare parts and equipment including recognition of spare parts and equipment which were scrapped in the preceding year(s).

 

Section 6.03 Inspections

 

.  Delta or its designee shall be entitled to conduct a codeshare safety audit, on-site observations, inspections and audits of Pinnacle’s in-flight service, flight, maintenance, technical operations, Aircraft cleaning and any and all other services and operations performed under this Agreement to monitor Pinnacle’s operations, safety, performance and overall customer experience in the same manner as similar functions are evaluated at Delta.  Pinnacle’s operation will be evaluated according to the same standard as Delta taking into account the differences in size and operational capabilities between Delta and Pinnacle.  Such observations, inspections and audits may be announced or unannounced, but under no circumstances shall they materially interfere with the operation of Pinnacle’s business.  Delta shall report the findings of any such inspection to Pinnacle in writing.  Pinnacle shall provide a prompt written response detailing a plan of corrective action to remedy any deficiencies noted in any inspection. If any deficiency with respect to operational safety, flight service, maintenance, or technical operations comes to the attention of Pinnacle through internal audits or any other means, Pinnacle shall take immediate corrective action with respect thereto. In addition, Pinnacle shall promptly notify Delta of any of the following deficiencies that come to the attention of Pinnacle:

.  Each of the Parties agrees that, except as otherwise required by Governmental Regulations or any other applicable law or legal process, or as may be required to comply with or enforce the terms hereof, it shall not disclose to others and shall keep confidential the terms of this Agreement and any confidential, non-public information concerning the other or any of its Affiliates that it obtains as a result of or pursuant to this Agreement.  The Parties agree, however, that each Party may share this Agreement, and the terms and details herein, with its respective outside financial auditors or attorneys without the consent of the other Parties, and without breach or violation of this Section 6.04 or this Agreement.  No Pinnacle Party shall issue any press release or public announcement relating to new Scheduled Flights, the cessation of Scheduled Flights in any Service City, schedule changes, customer initiatives, marketing programs or promotions, without Delta’s prior written approval of the press release or public announcement.  In any such press release or public announcement, Pinnacle shall identify itself as a Delta Connection Carrier.

Section 7.01 Identification License

 

.  Delta hereby grants to Pinnacle a limited, non-exclusive, non-transferable, non-sublicensable license to use the DL Identification in connection with its operation of the Regional Airline Services as authorized hereunder.

 

Section 7.02 Designator License

 

.  Delta hereby grants to Pinnacle a limited, non-exclusive, non-transferable, non-sublicensable license to use the Designator in connection with its operation of the Scheduled Flights as authorized hereunder.

 

Section 7.03 New Identifications

 

.  From time to time in its sole discretion, Delta may change any DL Identifications and/or Designators upon notice to Pinnacle.  After receipt of such notice, Pinnacle shall, as soon as practicable, but no later than sixty (60) days thereafter, commence use of the new DL Identifications and/or Designators and cease all use of any superseded ones.  Delta shall reimburse Pinnacle for the reasonable out-of-pocket expenses incurred by it in making such changes.

 

Section 7.04 Use of Identification

 

.  Delta shall have exclusive control over the use and display of all DL Identifications and Designators, and Pinnacle shall comply with all policies and guidelines of Delta in this regard.   Pinnacle shall use the DL Identifications and Designators in good faith, in a dignified manner and in compliance with good trademark practice.  Pinnacle shall use the DL Identifications and Designators exactly as prescribed by Delta, and shall not use (i) any stylization, abbreviation or variation thereof or (ii) the DL Identifications and Designators in connection or combination with any other Identification, in each case, without Delta’s prior written consent, which may be withheld in its sole discretion.

 

Section 7.05 Quality Control

 

.  Pinnacle shall use the DL Identifications and Designators only in connection with products and services that comply with the high standards of quality associated with Delta. At Delta’s request, Pinnacle shall submit representative samples to Delta of all uses by it of the DL Identifications and Designators pursuant to this Agreement, including Sections 2.02 and 4.03.  Pinnacle shall receive the prior written approval of Delta for any new uses of the DL Identifications and Designators, including on any advertising and promotional materials.  Once such approval is received, Pinnacle need not resubmit such materials for approval unless they contain non-trivial modifications.

 

Section 7.06 Reservation of Rights

 

.  All rights not expressly granted to Pinnacle hereunder are expressly reserved by Delta, including without limitation the right to use or license others to use any DL Identifications or Designators.  Pinnacle shall not use the DL Identification or Designator except as expressly authorized herein, nor has any right to use any other Identification of Delta other than the specific DL Identification in the exact form prescribed by Delta from time to time.

 

Section 7.07 Ownership

 

.  Each Pinnacle Party hereby acknowledges that, as between the Parties, Delta is the sole owner of the names “Delta” and “Delta Connection,” the Delta “widget” logo, the initials “DL,” and any Designators or DL Identifications related thereto or

 

otherwise licensed to Pinnacle hereunder.  Each Pinnacle Party agrees not to directly or indirectly question, attack, contest or impugn the validity and/or Delta’s rights in the Designators and DL Identifications, including without limitation by attempting to register title to or any intellectual property rights in same or by participating in any action or proceeding adverse to Delta in this regard.  Each Pinnacle Party agrees to cooperate fully with Delta in all actions to enforce, police and defend Delta’s rights in the Designators and DL Identifications, subject to reimbursement for its reasonable out-of-pocket expenses.

Section 7.08 Termination

 

.  Should this Agreement expire or terminate for any reason and not be replaced with another airline services agreement among the Parties, the licenses in Sections 7.01 and 7.02 shall immediately terminate (although Sections 7.07 and 7.08 shall survive), and Pinnacle shall promptly, but in any event within ninety (90) days (one hundred twenty (120) days with respect to any distinctive color scheme), take all such actions as may be necessary to change its facilities, equipment, uniforms, supplies and other materials to cease all use of any Designators and DL Identifications and to avoid any customer confusion or the suggestion or appearance that Pinnacle continues to have an operating relationship with Delta.

 

Section 7.09 Bankruptcy

 

.  The Parties intend that the identity of Pinnacle as the licensee hereunder is a material condition to Delta’s granting of the licenses in Section 7.01 and Section 7.02, and that this Agreement should be construed overall as a contract for the personal services of Pinnacle.  Therefore, in the event Pinnacle becomes subject to a bankruptcy proceeding, the Parties intend that this Agreement shall not be assumed and/or assigned by Pinnacle or its representative without Delta’s prior consent, provided that Delta hereby consents to Pinnacle’s assumption of this Agreement in connection with the Bankruptcy Cases.

Section 8.01 Taxes and Fees

 

.  Pinnacle shall be liable for and pay the amount of any taxes (other than Ticket Taxes and Fees), duties, license fees, assessments, and other charges, together with any interest and penalties thereon, levied, assessed, or imposed by any federal, foreign, state or local taxing or airport authority related or attributable to (i) the property owned or used by Pinnacle, and (ii) the performance of Regional Airline Services pursuant to this Agreement, excluding any taxes based on the net income of Delta.  Delta shall reimburse Pinnacle for taxes as set forth on Exhibit A.

 

Section 8.02 Property Tax, Fuel Tax, and Sales and Use Tax Compliance

 

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(a) With respect to any property taxes, fuel taxes, sales and use taxes, excise taxes, liquor taxes, and similar transaction taxes (“Transaction Taxes”), Delta and the Pinnacle Parties shall cooperate to ensure that Pinnacle is timely filing appropriate tax returns and refund claims to minimize its respective Transaction Taxes.  Delta shall determine which entity, Delta or Pinnacle, shall be responsible for preparing and filing appropriate such tax returns and refund claims.  Unless Delta determines otherwise and notifies Pinnacle in writing, Pinnacle shall be responsible for all such Transaction Tax filings and payments. Upon the request of Delta, (i) Delta shall be entitled to review any actual or proposed tax filings of Pinnacle related to Transaction Taxes and (ii) Pinnacle shall execute and deliver a power of attorney and/or an assignment of refund claim in favor of Delta, in each case with respect to any Transaction Taxes.

 

Pinnacle shall notify Delta of the commencement of any tax audit. Prior to resolving any tax audit, Pinnacle shall receive approval from Delta to resolve any such audit.

(b) Pinnacle shall use its reasonable best efforts to, and cooperate with Delta to, minimize its respective Transaction Taxes.  Pinnacle shall in good faith and using reasonable best efforts supply Delta with such information and documents reasonably requested by Delta to minimize its respective Transaction Taxes.  Unless Delta determines otherwise, Pinnacle shall use its reasonable best efforts to seek any and all applicable refunds or credits of Transaction Taxes paid by Pinnacle.  Any such refunds for Transactional Taxes will be to the sole benefit of Delta.

 

Section 8.03                      New International Service Cities.  With respect to taxes associated with any Regional Airline Services to new international Service Cities, which are commenced after the Effective Date, Delta and Pinnacle shall use reasonable best efforts to agree to the administration of all responsibilities for such taxes and how such taxes shall be reimbursed in accordance with Exhibit A hereto.

Section 9.01 Independent Contractor

 

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(a) Each of the Pinnacle Parties shall act hereunder as an independent contractor.  The employees, agents and/or independent contractors of the applicable Pinnacle Party engaged in performing any of the services such Pinnacle Party is obligated to perform pursuant to this Agreement shall be employees, agents and independent contractors of such Pinnacle Party for all purposes and under no circumstances shall employees, agents or independent contractors of any Pinnacle Party be deemed to be employees, agents or independent contractors of Delta.  In its performance of obligations under this Agreement, each of the Pinnacle Parties shall act, for all purposes, as an independent contractor and not as an agent for Delta.  Delta shall have no supervisory power or control over any employees, agents or independent contractors engaged by any Pinnacle Party in connection with their performance of their respective obligations hereunder, and all complaints or requested changes in procedure shall, in all events, be transmitted by Delta to a designated representative of Parent.  Nothing contained in this Agreement is intended to limit or condition Operator control over its operation or the conduct of its business as an air carrier

 

(b) Delta shall act hereunder as an independent contractor. The employees, agents and/or independent contractors of Delta engaged in performing any of the services Delta is to perform pursuant to this Agreement shall be employees, agents and independent contractors of Delta for all purposes and under no circumstances shall employees, agents and independent contractors of Delta be deemed to be employees, agents or independent contractors of any Pinnacle Party.  In performing its obligations under this Agreement, Delta shall act, for all purposes, as an independent contractor and not as an agent for any Pinnacle Party.  No Pinnacle Party shall have any supervisory power or control over any employees, agents or independent contractors engaged by Delta in connection with the performance of its obligations hereunder, and all complaints or requested changes in procedure shall, in all events, be transmitted by any

 

Pinnacle Party to a designated representative of Delta.  Nothing contained in this Agreement is intended to limit or condition Delta’s control over its operation or the conduct of its business as an air carrier.

Section 9.02 Indemnification

 

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(a) At all times while Regional Airline Services are being furnished hereunder, including without limitation, while Ground Handling Functions are being performed with respect to any Aircraft, an employee or agent of Pinnacle shall be in charge, custody and control of any Aircraft operated by Pinnacle by Delta or its contractors and Delta shall at no time be considered a bailee of or as having care, custody or control of such Aircraft.

 

(b) Each Pinnacle Party, jointly and severally, shall be liable for and hereby agrees fully to defend, release, discharge, indemnify, and hold harmless Delta and its Affiliates, and each of their respective directors, officers, employees and agents (each, a “Delta Indemnitee”) from and against any and all claims, demands, damages, liabilities, suits, judgments, actions, causes of action, losses, costs and expenses of any kind, character or nature whatsoever (in each case whether groundless or otherwise), including reasonable attorneys' fees, costs and expenses in connection therewith and expenses of investigation and litigation thereof, which may be suffered by, accrued against, charged to, or recoverable from any Delta Indemnitee in any manner arising out of, connected with, or attributable to this Agreement, the performance, improper performance, or nonperformance of any and all obligations to be undertaken by a Pinnacle Party pursuant to this Agreement, or the operation, non-operation, or improper operation by a Pinnacle Party of the Equipment or the Premises, excluding only claims, demands, damages, liabilities, suits, judgments, actions, causes of action, losses, costs and expenses resulting from the gross negligence or willful misconduct of any Delta Indemnitee.

 

(c) Except as limited by Section 9.02(d) below, Delta shall be liable for and hereby agrees fully to defend, release, discharge, indemnify, and hold harmless Pinnacle, and each of their respective directors, officers, employees, and agents (each, a “Pinnacle Indemnitee”) from and against any and all claims, demands, damages, liabilities, suits, judgments, actions, causes of action, losses, costs and expenses of any kind, character or nature whatsoever (in each case whether groundless or otherwise), including reasonable attorneys' fees, costs and expenses in connection therewith and expenses of  investigation and litigation thereof, which may be suffered by, accrued against, charged to, or recoverable from any Pinnacle Indemnitee in any manner arising out of, connected with, or attributable to Delta’s performance, improper performance or nonperformance of any and all obligations to be undertaken by Delta pursuant to this Agreement,  or the operation, non-operation or improper operation of Delta's aircraft, equipment or facilities at any location, excluding only claims, demands, damages, liabilities, suits, judgments, actions, causes of action, losses, costs and expenses resulting from the gross negligence or willful misconduct of any Pinnacle Indemnitee.   Delta will do all things necessary to cause and assure, and will cause and assure, that Delta will at all times be and remain in custody and control of any aircraft, equipment and facilities of Delta used in connection with performance of this Agreement, and no Pinnacle Indemnitee shall, for any reason, be deemed to be in the custody or control, or a bailee, of such Delta aircraft, equipment or facilities.

 

(d) Delta shall be liable for and hereby agrees fully to defend, release, discharge, indemnify, and hold harmless Pinnacle Indemnity against any physical loss of or damage to the

 

Aircraft caused solely by Delta's negligent operation of ground support equipment while providing Ground Handling Functions PROVIDED ALWAYS THAT Delta's liability shall be limited to any such loss of or damage to Pinnacle’s Aircraft not exceeding the lesser of (i) $500,000 or (ii) the deductible on Pinnacle’s hull insurance policy covering the damaged Aircraft, except that loss or damage in respect of any incident below [***] shall not be indemnified.

(e) The Pinnacle Parties and Delta agree to comply with all lawful rules, regulations, directives and similar instructions of appropriate governmental, judicial and administrative entities including, but not limited to, airport authorities, the Federal Aviation Administration and the Department of Transportation (and any successor agencies) with respect to the Regional Airline Services.

 

(f) OTHER THAN ANY WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT, EACH PARTY DISCLAIMS AND THE OTHER PARTY HEREBY WAIVES ANY WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THIS AGREEMENT OR ITS PERFORMANCE OF ITS OBLIGATIONS HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE RELATING TO ANY EQUIPMENT, DATA, INFORMATION OR SERVICES FURNISHED HEREUNDER.  EACH PARTY AGREES THAT NO OTHER PARTY IS LIABLE TO IT OR ANY OTHER PERSONS FOR CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES.

 

(g) Indemnification Claims.  A party (the “Indemnified Party”) entitled to indemnification from the other party under the terms of this Agreement (the “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder, and the Indemnifying Party shall be entitled, if it accepts financial responsibility for the third party claim, to control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim.  If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim.  The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim.  Except as set forth above in this Section 9.02(g), the Indemnified Party shall not enter into any settlement or other compromise or consent to a judgment with respect to a third party claim as to which the Indemnifying Party has an indemnity obligation hereunder without the prior written consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), and the entering into any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby.  Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays

 

for any Loss suffered by the Indemnified Party hereunder.  Notwithstanding anything contained in this Section 9.02(g) to the contrary, any Pinnacle Party and Delta will cooperate in the defense of any claim imposed jointly against them or as the result of the conduct of the other.

(h) The respective obligations of the Parties under the indemnity and insurance provisions contained in this Agreement shall remain in effect and shall survive without limitation the termination of this Agreement with respect to any occurrence or claims arising during the term of or in connection with this Agreement.

 

Section 9.03 Insurance

 

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(a) Pinnacle agrees, at its sole expense, to maintain in full force and effect the following insurance coverage with respect to Regional Airline Services:

 

(1) All risk hull (including spares) insurance and hull war risk insurance on an agreed value basis.

 

(2) Comprehensive airline liability insurance (including premises, hangarkeepers, mobile equipment, contractual, cargo and products and completed operations liability) covering bodily injury, personal injury and property damage in an amount not less than [***] per occurrence and in the aggregate where applicable.

 

(3) Workers' compensation for statutory limits.

 

(4) Employer's liability in an amount not less than [***].

 

(5) Baggage liability limit of [***] or tariff, whichever is greater

 

(6) Automobile liability for public road use in an amount not less than [***] combined single limit per occurrence.

 

(7) War, Hijacking and Other Allied Perils insurance protecting against the perils in AVN52D, as amended from time to time, or its U.S. equivalent in an amount not less than [***] per occurrence.  Such insurance may be maintained through a combination of primary and excess layers.

 

(8) In lieu of commercial War Risk coverages required in Sections 9.03(a)(1) and (7) above, evidence of indemnification by the United States Government shall be acceptable.

 

(b) Prior to the commencement of Regional Airline Services under this Agreement and upon renewal of the required coverages, Pinnacle shall issue a Certificate of Insurance to Delta evidencing the above coverage requirements.  Except for Workers Compensation, the Certificates of Insurance must include the following special insurance provisions:

 

(1) Delta, its Affiliates and each of their respective it directors, officers, employees and agents are included as Additional Insureds to the extent Pinnacle’s liability to Delta and such entities herein.

 

(2) Pinnacle’s insurance coverages are primary without right of contribution from Delta’s insurance.

 

(3) Pinnacle’s insurers will waive their rights of subrogation against Delta, its Affiliates and their respective directors, officers, employees and agents, but only to the extent Pinnacle has waived its rights against such parties pursuant to the terms of this Agreement.

 

(4) With respect to the insurance afforded Delta, its Affiliates and their respective directors, officers, employees and agents, Pinnacle’s insurance shall not be invalidated by and breach or warranty by any Pinnacle Party.

 

(5) Provide cross liability and severability of interest provisions.

 

(6) In the event the required coverages are cancelled or materially changed, Pinnacle’s insurers will provide thirty (30) days prior notice (7 days as respect War Coverages and 10 days as respects non payment of premium) to Delta.

 

(c) Pinnacle shall comply with all insurance provisions in any Lease for any Aircraft that Pinnacle leases or subleases from Delta.

 

(d) [***].

Section 10.01 Term

 

.  This Agreement shall commence on and shall be effective as of July 1, 2010 and, unless earlier terminated as provided herein, shall continue in effect until the twelfth (12th) anniversary of such date (the “Term”).

 

Section 10.02 Termination by Either Party

 

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(a) Notwithstanding the provisions of Section 10.01, Delta may terminate this Agreement immediately if any Pinnacle Party files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, fails to secure dismissal of any involuntary petition in bankruptcy within sixty (60) days after the filing thereof, or petitions for reorganization, liquidation, or dissolution under any federal or state bankruptcy or similar law.

 

(b) Notwithstanding the provisions of Section 10.01, the Pinnacle Parties may terminate this Agreement immediately if Delta files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, fails to secure dismissal of any involuntary petition in bankruptcy within sixty (60) days after the filing thereof, or petitions for reorganization, liquidation, or dissolution under any federal or state bankruptcy or similar law.

 

(c) Notwithstanding the provisions of Section 10.01, in the event of a material breach of this Agreement by either any Pinnacle Party or Delta remaining uncured for more than thirty

 

(30) days after receipt of written notification of such breach by the nonbreaching Party, then the nonbreaching Party may immediately terminate this Agreement at its sole option.

Section 10.03 Termination by Delta

 

.  Notwithstanding, and in addition to, the provisions of Section 10.02, Delta shall have the right to terminate this Agreement immediately and at its sole option upon the occurrence of one or more of the following:

 

(i) Any Pinnacle Party agrees to merge into or with any entity other than an Affiliate of Parent, agrees to be acquired by any entity other than Affiliate of Parent, agrees to sell substantially all of its assets or enters into a letter of intent, or similar document, to merge into or with any entity other than an Affiliate of Parent, to be acquired by any entity other than an Affiliate of Parent, or to sell substantially all of its assets (each such event, a “Merger”);

 

(ii) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)) (a “Person”) other than an Affiliate of Parent of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than forty-nine percent (49%) of either (a) the then outstanding shares of common stock of any Pinnacle Party, or (b) the combined Voting Power of the then outstanding voting securities of any Pinnacle Party entitled to vote generally in the election of such entity’s directors or managers, as applicable (each such event, a “Change of Control”);

 

(iii) Pinnacle’s level of safety with respect to its operation of the Aircraft or the Regional Airline Services is not reasonably satisfactory to Delta;

 

(iv) a breach by Pinnacle of Section 2.08 hereof;

 

(v) Pinnacle’s failure to pass, in Delta’s reasonable discretion, a safety and codeshare audit to be conducted by Delta, at its sole discretion, at any time during the Term of this Agreement;

 

(vi) Pinnacle fails to achieve any of the Operational Performance Standards set forth on Schedule 2.11 with respect to the Aggregate CRJ900 Delta Connection Flights during [***];

 

(vii) a material breach by any Pinnacle Party of any representation or warranty in Section 11.01(e);

 

(viii) Pinnacle’s failure to comply with the insurance provisions of Section 9.03 hereof;

 

(ix) Pinnacle’s FAA or DOT Certification is for any reason suspended or revoked or otherwise not in full force and effect so as to permit Pinnacle to provide the Regional Airline Services required under this Agreement;

 

(x) Pinnacle shall commence operating an aircraft type which causes Delta to be in violation of its collective bargaining agreement with its pilots, as may be amended from time to time;

 

(xi) any Pinnacle Party shall default with respect to the material terms of any other agreement between any Pinnacle Party or any Affiliate of any Pinnacle Party, on the one hand, and Delta or an Affiliate of Delta, on the other hand (any such agreement, a “Related Party Agreement”), and such breach shall continue for more than the period of grace, if any, specified therein and shall not have been waived; provided, however, that each of (i) the 2007 CRJ-900 Delta Connection Agreement; (ii) the SAAB Agreement and (iii) the Second and Amended Restated Air Services Agreement shall not be a Related Party Agreement hereunder until July 1, 2011; or

 

(xii) Pinnacle’s failure to pass, any audit conducted by the DOT, FAA, DOD or IOSA, at any time during the Term of this Agreement.

 

Section 10.04 Force Majeure

 

.  Notwithstanding the provisions of Sections 10.01, 10.02 and 10.03, in the event any acts of God, acts of terrorism or hostilities, war, strike, labor disputes, work stoppage, fire, act of government, court order, or any other act reasonably beyond the control of that party, including but not limited to, non-delivery or delay in delivery of the Aircraft or delay in the completion of required training of Pinnacle’s employees by the Aircraft manufacturer (each, a “Force Majeure Event”) substantially prevents one Party’s performance of its obligations pursuant to this Agreement, for a period of fifteen (15) or more consecutive days, Delta may (y) temporarily suspend some or all of the Aircraft from the scope of this Agreement upon written notice to Parent, or (z) terminate this Agreement in its entirety upon thirty (30) days prior written notice to Parent.

 

Section 10.05 Effect of Termination

 

.  Termination of this Agreement for any reason shall not relieve any Party of rights and obligations incurred prior to the effective date of termination.  A Party’s right to terminate this Agreement shall be in addition to any other rights or remedies, in law or equity, available to such party.

 

Section 11.01 Representations; Warranties and Covenants of Pinnacle Parties

 

.  Each of the Pinnacle Parties represents and warrants to Delta as of the Effective Date as follows:

 

(a) Organization and Qualification.  Each Pinnacle Party is a duly organized and validly existing corporation in good standing under the laws of its state of incorporation and has the corporate power and authority to own, operate and use its assets and provide the Regional Airline Services.

 

(b) Authority Relative to this Agreement.  Each Pinnacle Party 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 Pinnacle Party.  This Agreement has been duly and validly executed and delivered by each Pinnacle Party and is, assuming due execution and delivery thereof by Delta and that Delta has full legal power and right to enter into

 

this Agreement, a valid and binding obligation of each Pinnacle Party, enforceable against each of them in accordance with its terms.

(c) Conflicts; Defaults.  Neither the execution or delivery of this Agreement nor the performance by any Pinnacle Party of the transactions contemplated hereby will (i) violate, conflict with, or constitute a default under any of the terms of such entity’s articles of incorporation, by-laws, or any provision of, or result in the acceleration of any obligation under, any contract, sales commitment, license, purchase order, security agreement, mortgage, note, deed, lien, lease, agreement or instrument, including without  limitation, any order, judgment or decree relating to the Regional Airline Services, (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.

 

(d) Broker.  No Pinnacle Party has retained or agreed to pay any broker or finder with respect to this Agreement and the transactions contemplated hereby.

 

(e) Compliance.  All Regional Airline Services performed pursuant to this Agreement or otherwise by Pinnacle shall be conducted in full compliance with all applicable statutes, orders, rules, regulations and notifications, whether now in effect or hereafter promulgated, of all governmental agencies having jurisdiction over its operations, including, but not limited to, the FAA, DOD, and DOT.  Pinnacle’s compliance with such governmental statutes, orders, rules, regulations and notifications will be the sole and exclusive obligation of each Pinnacle, and Delta will have no obligation, responsibility, or liability, whether direct or indirect, with respect to such matters.

 

Section 11.02 Representations and Warranties of Delta

 

.  Delta represents to each Pinnacle Party as of the Effective Date as follows:

 

(a) Organization and Qualification.  Delta is a duly incorporated 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 to operate the Delta Connection program.

 

(b) Authority Relative to this Agreement.  Delta 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 Delta.  This Agreement has been duly and validly executed and delivered by Delta and is, assuming due execution and delivery thereof by each Pinnacle Party and that each Pinnacle Party has full legal power and right to enter into this Agreement, a valid and binding obligation of Delta, enforceable against Delta in accordance with its terms.

 

(c) Conflicts; Defaults.  Neither the execution or delivery of this Agreement nor the performance by Delta of the transactions contemplated hereby will (i) violate, conflict with, or constitute a default under any of the terms of Delta’s articles of incorporation, by-laws, or any

 

provision of, or result in the acceleration of any obligation under, any contract, sales commitment, license, purchase order, security agreement, mortgage, note, deed, lien, lease, agreement or instrument, including without limitation, any order, judgment or decree relating to the Regional Airline Services, (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.

(d) Broker.  Delta has not retained or agreed to pay any broker or finder with respect to this Agreement and the transactions contemplated hereby.

 

(e) Compliance.  All air transportation-related actions performed pursuant to this Agreement or otherwise by Delta shall be conducted in full compliance with all applicable statutes, orders, rules, regulations and notifications, whether now in effect or hereafter promulgated, of all governmental agencies having jurisdiction over its operations, including, but not limited to, the FAA, DOD, and DOT. Delta’s compliance with such governmental statutes, orders, rules, regulations and notifications will be the sole and exclusive obligation of Delta, and no Pinnacle Party will have any obligation, responsibility, or liability, whether direct or indirect, with respect to such matters.

Pinnacle hereby covenants and agrees that:

 

(a) Pinnacle shall not enter into any binding agreement or arrangement (or series of agreements or arrangements) with any third party (excluding any employee collective bargaining units) for the procurement of any goods or services relating to Pinnacle, the Aircraft or operation of any of the Scheduled Flights or Charter Flights that will result in a material increase in Pinnacle’s Direct Expenses to perform its services hereunder without the prior written consent of Delta, which consent shall not be unreasonably withheld and shall be provided in a timely manner in order to permit Pinnacle to satisfy its conditions hereunder (it being understood that Delta’s consent shall not be required if Pinnacle does not pass any such increased costs to Delta as a Direct Expense or otherwise).

 

(b) [***]

 

(c) Pinnacle shall file all reports and plans relating to its operations with the DOD, DOT, FAA, NTSB or any state or airport authority, and Pinnacle shall promptly furnish Delta with copies of all such reports and such other available traffic and operating reports as Delta may request from time to time.  Additionally, Pinnacle will promptly furnish Delta with a copy of every report and plan that Pinnacle prepares, whether or not such report is filed with the FAA, NTSB or any other governmental agency, relating to any accident or incident involving an Aircraft when such accident or incident is claimed to have resulted in the death or injury to any person or the loss of, damage to or destruction of any property.

 

(d) In the event Parent is no longer a public reporting company, Pinnacle shall furnish to Delta (1) within 45 days after the end of each of the three interim calendar quarters, unaudited

 

financial statements including Pinnacle's then current corporate balance sheet and profit and loss statement and  (2) within 91 days after the end of Pinnacle's fiscal year, Pinnacle's then current, audited financial statements including, either separately or on a consolidated basis, the balance sheet and the profit and loss statement, together with associated footnotes, and a copy of the independent auditor's report.  Notwithstanding the reporting status of Parent, Pinnacle shall furnish to Delta within 91 days after the end of Pinnacle's fiscal year, a profit and loss statement with respect to Pinnacle’s Delta Connection operations prepared by SEC line-item and certified by Pinnacle’s chief financial officer.

Section 13.01 

 

This Agreement is subject to, and will be governed by and interpreted in accordance with, the laws of the State of New York, excluding conflicts of laws principles, and of the United States of America.  Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may only be brought in the courts of the State of New York in New York County, or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of New York, and each of the parties hereto irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives, to the fullest extent permitted by law, any objection to venue laid therein.  Process in any action or proceeding referred to in the proceeding sentence may be served on any party anywhere in the world.  Each party further agrees to waive any right to a trial by jury.

 

Section 13.02 

 

The descriptive headings of the several articles and sections of this Agreement are inserted for convenience only, confer no rights or obligations on either party, and do not constitute a part of this Agreement.

 

Section 13.03 

 

Time is of the essence in interpreting and performing this Agreement.

 

Section 13.04 

 

This Agreement (including the Exhibits and Schedules hereto) constitutes the entire understanding between the parties with respect to the subject matter hereof, and any other prior or contemporaneous agreements, whether written or oral, are expressly superseded hereby.

 

Section 13.05 

 

If any part of any provision of this Agreement shall be invalid or unenforceable under applicable law, such part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of such provision or the remaining provisions.

 

Section 13.06 

 

This Agreement may be executed in any number of counterparts, including via facsimile, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument.

 

Section 13.07 

 

Because a breach of the provisions of this Agreement could not adequately be compensated by money damages, any party shall be entitled to an injunction restraining such breach or threatened breach and to specific performance of any provision of this Agreement and, in either case, no bond or other security shall be required in connection therewith, and the parties hereby consent to the issuance of such injunction and to the ordering of specific performance.

 

 

Section 13.08 

 

NO PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOST PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM THIS AGREEMENT OR ANY BREACH HEREOF.

 

No amendment, modification, supplement, termination or waiver of any provision of this Agreement, and no consent to any departure by any Party therefrom, shall in any event be effective unless in writing signed by authorized representatives of each Party hereto, and then only in the specific instance and for the specific purpose given.

Unless otherwise provided herein, all notices, requests and other communications required or provided for hereunder shall be in writing (including telecopy or similar teletransmission or writing) and shall be given at the following addresses:

Any such notice, request or other communication shall be effective (i) if given by mail, upon the earlier of receipt or the third business day after such communication is deposited in the United States mails, registered or certified, with first class postage prepaid, addressed as aforesaid or (ii) if given by any other means including, without limitation, by air courier, when delivered at the address specified herein.  A Party may change its address for notice purposes by notice to the other Parties in the manner provided herein.

This Agreement shall bind and inure to the benefit of Delta, Parent and Pinnacle, and their respective successors and assigns; provided, however, neither party may assign or transfer this Agreement or any portion hereof to any person or entity without the express written consent of the other party.  Any assignment or transfer, by operation of law or otherwise, without such consent shall be null and void and of no force or effect.

Except as otherwise provided below, each Party shall, and shall ensure that its directors, officers, employees, Affiliates and professional advisors (collectively, the “Representatives”), at all times, maintain strict confidence and secrecy in respect of all Confidential Information (as defined below) of the other Parties (including their respective Affiliates) received directly or indirectly as a result of this Agreement.  If a Party (the “Disclosing Party”) in good faith determines that it is required to disclose any Confidential Information of another Party (the “Affected Party”) in order to comply with any applicable law

or government regulation, or under the terms of a subpoena or order issued by a court or governmental body, it shall (a) notify the Affected Party immediately of the existence, terms and circumstances surrounding such request, (b) consult with the Affected Party on the advisability of taking legally available steps to resist or narrow such request and (c) if any disclosure of Confidential Information is required to prevent the Disclosing Party from being held in contempt or subject to other legal penalty, furnish only such portion of the Confidential Information as it is legally compelled to disclose and use commercially reasonable efforts (at the cost of the party whose Confidential Information is being protected) to obtain an order or other reliable assurance that confidential treatment shall be accorded to the disclosed Confidential Information.  Each Party agrees to transmit Confidential Information only to such of its Representatives as required for the purpose of implementing and administering this Agreement, and shall inform such Representatives of the confidential nature of the Confidential Information and instruct such Representatives to treat such Confidential Information in a manner consistent with this Article XIX.

For purposes of this Agreement, “Confidential Information” shall mean (a) all confidential or proprietary information of a party, including, without limitation, trade secrets, information concerning past, present and future research, development, business activities and affairs, finances, properties, methods of operation, processes and systems, customer lists, customer information (such as passenger name record or “PNR” data) and computer procedures and access codes; and (b) the terms and conditions of this Agreement and any reports, invoices or other communications between the parties given in connection with the negotiation or performance of this Agreement; and (c) excludes (i) information already in a party’s possession prior to its disclosure by other party; (ii) information obtained from a third person or entity that is not prohibited from transmitting such information to the receiving party as a result of a contractual, legal or fiduciary obligation to the party whose information is being disclosed; (iii) information that is or becomes generally available to the public, other than as a result of disclosure by a party in violation of this Agreement; or (iv) information that has been or is independently acquired or developed by a party, or its Affiliate, without violating any of its obligations under this Agreement.

Parent hereby unconditionally and irrevocably guarantees to Delta the due and punctual performance by Pinnacle of Pinnacle’s obligations, agreements and covenants arising under this Agreement and under each term and condition hereof (collectively, the “Obligations”).  If Pinnacle shall fail or be unable to perform any such Obligation as and when the same shall be required to be performed, then Parent, at its sole cost and expense, shall be obligated to promptly perform or cause to be promptly performed each such Obligation in accordance with the terms hereof and thereof.  This guaranty is a guaranty of payment, performance and compliance and not of collectibility and is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by Pinnacle or upon any other event or condition whatsoever.  If for any reason any payment Obligation amount shall not be paid by Pinnacle when due, Parent shall immediately pay such amount to the person entitled thereto pursuant to this Agreement, as if such amount constituted the direct and primary obligation of Parent and regardless of whether any person has taken any steps to enforce any rights against Pinnacle to collect such amount.

To the fullest extent permitted under applicable law, the obligations of Parent and Pinnacle hereunder shall be absolute and unconditional, shall be continuing and remain in full force and effect until final and irrevocable payment or performance, and shall not be released, discharged, affected or impaired in any respect by: (a) any amendment, modification, or cancellation of, or addition or supplement to this Agreement; (b) any exercise, acceleration, extension, compromise, settlement, non-exercise, waiver, release, or cancellation by Delta of any right, remedy, power or privilege under or related to this Agreement or any other guaranty of any obligations of Pinnacle; (c) the invalidity or unenforceability, in whole or in part, of this Agreement; (d) any change in the corporate existence, structure or ownership of Pinnacle or Parent or any insolvency, bankruptcy, reorganization or other similar proceeding affecting either of them or their assets; or (e) any other occurrence, circumstance, happening or event whatsoever, whether similar or dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance which might otherwise constitute a legal or equitable defense, release or discharge of the liabilities of a guarantor or surety, or which might otherwise limit recourse against Parent or Pinnacle.  If acceleration of the time for the performance or payment of any Obligation is stayed upon the insolvency, bankruptcy or reorganization of Pinnacle, all Obligations that are subject to acceleration under the terms of this Agreement shall nonetheless be performed or payable hereunder by Parent or Pinnacle, as applicable.

surety; or (iv) so long as any Obligation remains outstanding, any right of subrogation by virtue of any performance or payment made hereunder.  Each of Parent and Pinnacle agrees that any payment or performance of the Obligations guaranteed by it hereunder or other act that tolls any statute of limitations applicable to enforcement of the Obligations shall similarly operate to toll any statute of limitations applicable to any liability of Parent or Pinnacle pursuant to this Article XX.  In addition, to the fullest extent permitted by applicable law, each of Parent and Pinnacle waives the benefit and advantage of any and all valuation, stay, appraisement, extension or redemption laws which, but for this provision, agreement and waiver, might be applicable to any sale made under any judgment, order or decree of any court or otherwise based on the respective guaranty of Parent and Pinnacle pursuant to this Article XX.  All waivers made by Parent or Pinnacle in this Section 20.03 and elsewhere throughout this Article XX are intentional and made by Parent or Pinnacle, as applicable, after due consideration of all the consequences thereof.

(a) Fuel Administration.  Pinnacle will join the fuel consortium at a Service City upon Delta’s request.  In connection with the Regional Airline Services, Delta will provide to Pinnacle the following fuel-related services:  (i) fuel supply and into-plane fuel services, including negotiation of fuel supply, fuel storage and into-plane service contracts for the Aircraft and (ii) payment of all into-plane and fuel invoices in respect of the Aircraft.  Delta will reimburse Pinnacle for any fees associated with joining or being a member of a consortium.

(b) Fuel Burn Review Procedures.  Commencing as of January 1, 2011, Delta and Pinnacle agree to review the fuel burn performance (defined as gallons per block hour) of the Aircraft for compliance with annual performance measures including, but not limited to:

Pinnacle will be responsible for the development and setting of the annual performance measure targets for the Aircraft, each as defined in Attachment B, and an annual budgeted fuel burn rate expressed in gallons per block hour (“All-in Rate”), in a timeframe consistent with the development of the annual operating expense budget of each party.  The All-in Rate shall encompass all scheduled and non-scheduled burned gallons and include the measures defined in (b)(i-ii) above and those measures the Parties may agree to subsequently add.  The annual targets for the performance measures and All-in Rate will be subject to Delta’s approval.  The Parties agree to work in good faith to resolve any differences that may exist with respect to setting annual targets.  Pinnacle shall implement industry best practices to efficiently manage FOA to ensure target achievement (i.e. Alternate Exemptions 3585C, etc.)  For the APU target, in the event agreement can not be reached, the target will be based on the then-applicable APU target of Pinnacle with appropriate operational adjustments.  Additional performance measures may be identified and added at a future date by mutual agreement of the parties for purposes of reviewing the Aircraft’s annual fuel burn.  In the event data is not yet available for a given

(a) Pinnacle shall be subject to certain monthly performance levels together with incentive payments and/or penalties as described in this Section 1.05(a) (“Performance Criteria”).  If Pinnacle achieves the performance criterion, then Delta shall pay Pinnacle the applicable incentive amount set forth below and if Pinnacle does not achieve the performance criterion, then Delta shall charge Pinnacle the applicable penalty amount set forth below.  All incentives and penalties are monthly, unless otherwise specified as quarterly, and stated in dollars per Aircraft.  In the case of Aircraft additions or removals within a monthly or quarterly period, such incentive amounts will be prorated.  Any monthly incentive amount shall be added to, and any monthly penalty charge shall be deducted from, the monthly settlement payment.  Any quarterly incentive amount shall be added to, and any quarterly penalty charge shall be deducted from, the next monthly settlement payment following the tenth day after the delivery by Delta of Pinnacle’s ISM Score pursuant to Section 2.11(a)(iii).  The applicable performance levels and corresponding incentives and penalties are as follows:

In conjunction with Pinnacle’s on-time arrival performance, Pinnacle’s target block time performance (within zero minutes) shall not exceed [***] with respect to the Aggregated CRJ900 Delta Connection Flights.  If Pinnacle’s actual block time performance (within zero minutes) exceeds [***]with respect to the Aggregated CRJ900 Delta Connection Flights, Pinnacle’s actual arrival performance (within zero minutes) will be adjusted downward by 0.7 percentage point per 1.0 percentage point in excess of [***].

(iii) Customer Satisfaction (measured in accordance with Section 2.11(a)(iii) of the Agreement) (The Performance Period for Customer Satisfaction will be assessed on a calendar quarter basis):

(b) Reconciliation of Performance Standards.  Following each month, (i) Pinnacle shall prepare a reconciliation of its actual performance to the targeted performance with respect to the completion factor and on-time arrival factor with respect to the Aggregated CRJ900 Delta Connection Flights and (ii) Delta shall prepare a reconciliation of Pinnacle’s actual performance to targeted performance with respect to the Customer Satisfaction results of the Aggregated CRJ900 Delta Connection Flights. Such reconciliations will be completed and delivered to the other Party within twenty (20) days after the end of each month.  Delta and Pinnacle will have the right to audit the reconciliations prepared by the other and shall report any discrepancies to the other.  Any discrepancy not reported in writing within sixty (60) days of the end of any month shall be deemed waived.

For purposes of this Exhibit A, the following terms are defined as set forth below.  (Other defined terms are set forth in Article I of the Agreement).

 

“2018 Rate Reset” shall have the meaning ascribed to such term in Section 1.02(e) of this Exhibit A.

 

“AAR Agreement” means that certain Aircraft Maintenance Agreement effective as of August 8, 2011 among AAR Aircraft Services, Inc., Delta and Mesaba, as may be amended, modified or extended in accordance with the terms of such agreement.

 

“Aircraft Months” means an Aircraft each month after such Aircraft has been placed in service by Pinnacle and remains in service for Delta (including non-scheduled Aircraft).  An Aircraft placed in service by Pinnacle by the 15th of a month is assumed to have been in service for the entirety of such month.

 

“Aircraft Month Payment” means the payment for Aircraft Months to be made pursuant to Section 1.01(a) of Exhibit A.

 

“Aircraft Months Rate” shall have the meaning ascribed to such term in Section 1.02 of this Exhibit A.

 

“All-in Rate” shall have the meaning ascribed to such term in Section 1.04 of this Exhibit A.

 

“Block Hour Payment” means the payment for Block Hours to be made pursuant to Section 1.01(a) of this Exhibit A.

 

“Block Hour Rate” shall have the meaning ascribed to such term in Section 1.02 of this Exhibit A.

 

“Clearing House” shall have the meaning ascribed to such term in Section 1.01(b) of this Exhibit A.

 

“Comparable Agreement” shall have the meaning ascribed to such term in Section 1.02(e) of this Exhibit A.

 

“CPPI” means the percent increase, if any, in the PPI for finished goods published by the United States Department of Labor, Bureau of Labor Statistics, which increase occurred during the immediately preceding calendar year, defined as (PPI for the prior calendar year/PPI for the two years prior)-1, but in no event in excess of [***] and in no event less than zero.  For example, when calculating the Block Hour Rate for 2014 in Section 1.03, CPPI is calculated as follows: (2013 PPI / 2012 PPI) – 1.

 

“CPPIB” means the percent increase, if any, in the PPI for finished goods published by the United States Department of Labor, Bureau of Labor Statistics, defined as (PPI for the prior calendar year/PPI for the year of 2009)-1, but in no event will the compound annual growth rate

be in excess of [***] or less than zero.  For example, when calculating the Block Hour Rate for 2012 in the Section 1.03, CPPIB is calculated as follows: (2011 PPI / 2009 PPI) – 1.

 

“Cycle” means an actual takeoff at an origin city and landing at a destination city of an Aircraft in connection with a Scheduled Flight, a Non-Scheduled Flight or a Charter Flight.

 

“Cycle Payment” means the payment for Cycles to be made pursuant to Section 1.01(a) of this Exhibit A.

 

“Cycle Rate” shall have the meaning ascribed to such term in Section 1.02 of this Exhibit A.

 

“Delta Sourcing Initiative” shall have the meaning ascribed to such term in Section 1.03 of this Exhibit A.

 

“Direct Expenses” shall have the meaning ascribed to such term in Section 1.03 of this Exhibit A.

 

“Direct Expense Payment” means the payment for Direct Expenses to be made pursuant to Section 1.01(a) of this Exhibit A.

 

“Equipment Rental Expense” means the Aircraft Rental Expense, the Spare Engine Rental Expense and the QEC Rental Expense.

 

 “Fuel Burn Penalty Payment” shall have the meaning ascribed to such term in Section 1.04 of this Exhibit A.

 

“Margin Rate” shall have the meaning ascribed to such term in Section 1.02 of this Exhibit A.

 

“Monthly Payment” means the payment each month to be made pursuant to Section 1.01(a) of this Exhibit A.

 

“Monthly Rate” shall have the meaning ascribed to such term in Section 1.02 of this Exhibit A.

 

“Performance Criteria” shall have the meaning ascribed to such term in Section 1.05(a) of this Exhibit A.

 

 “PPI” means Producer Price Index for finished goods published by the United States Department of Labor, Bureau of Labor Statistics, and, if no longer published, any comparable successor index selected by Delta.

 

“Promissory Note” shall have the meaning ascribed to such term in Section 1.01(b) of this Exhibit A.

 

“Provisional Payment” shall have the meaning ascribed to such term in Section 1.01(b) of this Exhibit A.

 

“QEC Rental Expense” means the Basic Rent charged in the Leases between Delta and Pinnacle with respect to each of the QECs.

Note: The formulas below are to be used for the calculation of Fuel Burn Penalty Payments as they pertain to each performance measure and the All-in Rate in Section 1.04 of Exhibit A.  The Penalty, while settled on an annual basis, is based on a monthly calculation.  The result of the calculation for each performance measure shall be netted together to produce a net Penalty, if one should exist.  To the extent that formulas do not yet exist the parties mutually agree to document those formulas when those performance measures are implemented.  Per Section 1.04, the All-in Rate is first adjusted for the variances that exist with respect to each performance measure and actual operating schedule, and then to the extent an unfavorable variance to budget exists, the penalty formula below for the All-in Rate is applied.  A Penalty is assessed if the cause of the All-in Rate variance is deemed within the control of Pinnacle.  An example for a month is illustrated below in Attachment C hereto.