Pinnacle Corp and/or its Affiliates shall not engage in any such activity until the earlier of the date on which Pinnacle has eighty-three CRJ-200/440 Aircraft in its fleet and May 1, 2004;
Pinnacle Corp and Pinnacle Airlines (A) are in compliance with any and all applicable foreign, federal, state and local Laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals does not, individually or in the aggregate, constitute a Material Adverse Effect on Pinnacle Corp.
Pinnacle Corp and Pinnacle Airlines have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of Pinnacle Corp. and Pinnacle Airlines, in each case free and clear of all Encumbrances except such as are described in the Northwest Disclosure Letter or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by Pinnacle Corp. and Pinnacle Airlines; and any real property and buildings held under lease by Pinnacle Corp. and Pinnacle Airlines are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by Pinnacle Corp. and Pinnacle Airlines, in each case except as described in the Northwest Disclosure Letter.
Pinnacle Corp and Northwest will have executed and delivered to Fiduciary Counselors this Agreement, and the share exchange contemplated by Article II of this Agreement will have been consummated.
Pinnacle Corp has full legal right, power and authority to enter into this Agreement and to issue the Pinnacle Corp. Common Stock hereunder.
Pinnacle Corp is acquiring the Pinnacle Airlines Stock for investment and not with a view to distribution in violation of any applicable securities laws.
Pinnacle Corp irrevocably and unconditionally guarantees to NWA the due performance by Pinnacle Airlines and its Affiliates (as defined below) of their respective covenants, obligations and duties, whether now or hereafter existing, to NWA and its Affiliates under the Tax Sharing Agreement so that in the event Pinnacle Airlines or its Affiliates fail to observe or perform any covenant, obligation or duty on their part to be observed or performed thereunder, Pinnacle Corp. will observe and perform that covenant, obligation or duty, as the case may be. "Affiliate", for purposes of this Agreement, means any person or entity that immediately following the IPO or at any time thereafter directly or indirectly controls or is controlled by or in under the common control of the party referred to and includes any subsidiary whose parent owns 50% or more of its voting securities. Notwithstanding the foregoing, for purposes of this Agreement, (i) Affiliates of NWA shall not include any entities that would not be Affiliates of NWA but for NWA owning shares of Pinnacle Corp. or an officer or director of NWA serving as an officer or director of Pinnacle Corp., and (ii) Affiliates of Pinnacle Corp. shall not include any Affiliates of NWA or NWA.
Pinnacle Corp hereby waives and shall have no right of subrogation with respect to any payment made pursuant to its guarantee under this Section 4.
Pinnacle Corp shall indemnify and hold NWA, its officers and directors, and each person, if any, who controls NWA within the meaning of either Section 11 of the Securities Act or Section 20 of the Exchange Act (the "NWA Indemnified Parties") harmless from:
(i) any and all losses, liabilities, claims and damages resulting from the breach of any representation, warranty or covenant by Pinnacle Corp. set forth in this Agreement;
(ii) any and all losses, liabilities, claims and damages related to the IPO, including any and all amounts payable by NWA pursuant to the indemnification or contribution provisions of the Underwriting Agreement, except any losses, liabilities, claims or damages for which Pinnacle Corp. is entitled to indemnification by NWA pursuant to Section 11.1(ii); and
(iii) any reasonable costs or expenses, including reasonable attorneys' fees and expenses (except when Pinnacle Corp. is defending the claim in accordance with Section 11.2), of NWA incident to a loss, liability, claim or damage for which NWA is indemnified pursuant to Sections 11.1(1) and (ii) above. THE INDEMNITY OBLIGATION UNDER THIS SECTION 11 SHALL APPLY WITHOUT REGARD TO WHETHER THE LOSS, LIABILITY, CLAIM, DAMAGE, COST OR EXPENSE FOR WHICH INDEMNITY IS CLAIMED HEREUNDER WAS CAUSED BY THE NEGLIGENCE OF ANY OF THE NWA INDEMNIFIED PARTIES (WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE), OR WHETHER SUCH LOSS, LIABILITY, CLAIM, DAMAGE, COST OR EXPENSE IS BASED ON STRICT LIABILITY, ABSOLUTE LIABILITY OR ARISING AS AN OBLIGATION OR CONTRIBUTION.
Pinnacle Corp represents and warrants to Northwest as follows:
