EXHIBIT 4(e)(4)
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PARTICIPATION AGREEMENT
(N833MH)
Dated as of April 30, 2002
among
DELTA AIR LINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
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One Boeing 767-432ER Aircraft
U.S. Registration No. N833MH
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.................................................
Section 1.02 Other Definitional Provisions...............................
ARTICLE 2
THE LOANS
Section 2.01 The Loans....................................................
Section 2.02 Issuance of Equipment Notes..................................
Section 2.03 The Closing..................................................
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Obligations of Pass Through
Trustees..................................................
Section 3.02 Conditions Precedent to Obligations of Company..............
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF COMPANY
Section 4.01 Representations and Warranties of Company...................
Section 4.02 General Indemnity...........................................
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01 Representations, Warranties and Covenants of
State Street.............................................
ARTICLE 6
OTHER COVENANTS AND AGREEMENTS
Section 6.01 Other Agreements............................................
Section 6.02 Certain Covenants of Company................................
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices.....................................................
Section 7.02 Survival of Representations, Warranties,
Indemnities, Covenants and Agreements....................
Section 7.03 Governing Law...............................................
Section 7.04 Severability................................................
Section 7.05 No Oral Modifications or Continuing Waivers; Consents.......
Section 7.06 Effect of Headings and Table of Contents....................
Section 7.07 Successors and Assigns......................................
Section 7.08 Benefits of Agreement.......................................
Section 7.09 Counterparts................................................
Section 7.10 Submission to Jurisdiction..................................
Schedule I - Equipment Notes, Purchasers and Original Principal
Amounts
Schedule II - Trust Supplements
Exhibit A-1 - Form of Opinion of Counsel for Company
Exhibit A-2 - Form of Opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
special counsel for Company
Exhibit A-3 - Form of ss. 1110 Opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, special counsel for Company
Exhibit B - Form of Opinion of Special Counsel for Loan Trustee,
Subordination Agent and State Street
Exhibit C - Form of Opinion of Special FAA Counsel
Exhibit D-1 - Form of Opinion of Special Counsel for Liquidity
Provider
Exhibit D-2 - Form of Opinion of German In-House Counsel for
Liquidity Provider
Exhibit E - Form of Manufacturer's Consent
Exhibit F - Form of Opinion of Special Counsel for Pass Through
Trustees
Exhibit G - Form of Opinion of Special Counsel for Policy
Provider
Annex A - Definitions
PARTICIPATION AGREEMENT
(N833MH)
This PARTICIPATION AGREEMENT (N833MH), dated as of April 30, 2002,
is made by and among DELTA AIR LINES, INC., a Delaware corporation (together
with its successors and permitted assigns, "Company"), STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, together with its successors and
permitted assigns, "State Street"), not in its individual capacity except as
otherwise expressly provided in any of the Operative Documents or the Pass
Through Documents, but solely as trustee (in such capacity together with any
successor or other trustee in such capacity, "Pass Through Trustee") under each
of the Pass Through Trust Agreements (such term and other capitalized terms used
herein without definition being defined as provided in Section 1.01), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, as subordination agent and trustee (in such capacity,
together with any successor trustee in such capacity, "Subordination Agent")
under the Intercreditor Agreement, and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as loan trustee (in such capacity, together
with any successor trustee in such capacity, "Loan Trustee") under the
Indenture.
W I T N E S S E T H:
WHEREAS, Company is the owner of that certain Boeing Model 767-432ER
aircraft more particularly described in the Indenture Supplement originally
executed and delivered under the Indenture;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Company and Loan Trustee are entering into the Indenture, pursuant to
which, among other things, Company will issue four series of Equipment Notes,
which Equipment Notes are to be secured by a security interest in all right,
title and interest of Company in and to the Aircraft and certain other property
described in the Indenture;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each
of the Trust Supplements set forth in Schedule II, concurrently with the
execution and delivery of this Agreement, separate Pass Through Trusts are being
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Pass Through
Certificates;
WHEREAS, pursuant to the Intercreditor Agreement, Subordination
Agent will hold the Equipment Notes on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained, and of other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. For the purposes of this Agreement, unless
the context otherwise requires, capitalized terms used but not defined herein
have the respective meanings set forth or incorporated by reference in Annex A.
Section 1.02 Other Definitional Provisions. (a) The definitions
stated herein and in Annex A apply equally to both the singular and the plural
forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Subsections", "Schedules", "Exhibits", "Annexes" and other
subdivisions are to the designated Article, Section, Subsection, Schedule,
Exhibit, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) 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, Section, Subsection, Schedule, Exhibit, Annex or other subdivision.
(d) All references in this Agreement to a "government" are to such
government and any instrumentality or agency thereof.
(e) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, they shall be deemed to be
followed by the phrase "without limitation".
ARTICLE 2
THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of this
Agreement and the Indenture, on the Closing Date Pass Through Trustee for each
Pass Through Trust shall make a loan to Company by paying to Company the
aggregate original principal amounts of the Equipment Notes being issued to such
Pass Through Trust as set forth on Schedule I opposite the name of such Pass
Through Trust. Pass Through Trustees, on behalf of the Pass Through Trusts,
shall make such loans to Company no later than 11:00 a.m. (New York City time)
on the Closing Date by transferring such amount in immediately available funds
to Company at its account at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, ABA Number ▇▇▇▇▇▇▇▇▇, with the request that the bank
advise Company by telephone at (▇▇▇) ▇▇▇-▇▇▇▇ upon transfer of the funds.
Section 2.02 Issuance of Equipment Notes. Upon the occurrence of the
above payments by Pass Through Trustee for each Pass Through Trust to Company,
Company shall issue, pursuant to and in accordance with Article II of the
Indenture, to Subordination Agent as agent and trustee for Pass Through Trustee
for each Pass Through Trust, one or more Equipment Notes of the maturity and
aggregate principal amount and bearing the interest rate set forth in Schedule I
opposite the name of such Pass Through Trust. Each such Equipment Note shall be
duly authenticated by Loan Trustee pursuant to the Indenture, registered in the
name of Subordination Agent and dated the Closing Date and shall be delivered by
Loan Trustee to Subordination Agent.
Section 2.03 The Closing. The closing (the "Closing") of the
transactions contemplated hereby shall take place at the offices of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:30 a.m. (New York
City time) on April 30, 2002, or at such other time or place as the parties
shall agree.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Obligations of Pass Through
Trustees. The obligation of each Pass Through Trustee to make the loan
contemplated by Article II is subject to the fulfillment (or the waiver by such
Pass Through Trustee) prior to or on the Closing Date of the following
conditions precedent:
(a) Company shall have tendered the Equipment Notes to Loan Trustee
for authentication, and Loan Trustee shall have authenticated such Equipment
Notes and shall have tendered the Equipment Notes to Subordination Agent on
behalf of the applicable Pass Through Trustee in accordance with Section 2.02.
(b) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation
of law or governmental regulations for Pass Through Trustees to make the loans
contemplated by Section 2.01 or to acquire the Equipment Notes.
(c) This Agreement and the following documents shall have been duly
authorized, executed and delivered by the respective party or parties thereto
(other than Pass Through Trustees or Loan Trustee), shall be in full force and
effect and executed counterparts (or copies thereof where indicated) thereof
shall have been delivered to each Pass Through Trustee:
(i) the Intercreditor Agreement;
(ii) the Liquidity Facilities;
(iii) the Pass Through Trust Agreements;
(iv) the Indenture and the Indenture Supplement covering the
Aircraft and dated the Closing Date;
(v) the Manufacturer's Consent;
(vi) a copy of the FAA ▇▇▇▇ of Sale; and
(vii) a copy of the Warranty ▇▇▇▇ of Sale.
(d) A Uniform Commercial Code financing statement or statements
covering the security interest created by the Indenture shall have been executed
and delivered by Company, as debtor, and by Loan Trustee, as secured party, and
such financing statement or statements shall have been duly filed in all places
necessary or desirable within the State of Delaware.
(e) Each Pass Through Trustee shall have received the following:
(i) a certificate dated the Closing Date of the Secretary or an
Assistant Secretary of Company, certifying as to (A) a copy of the
resolutions of the Board of Directors of Company or the executive
committee thereof duly authorizing the transactions contemplated hereby
and the execution, delivery and performance by Company of this Agreement
and the Indenture and each other document required to be executed and
delivered by Company in accordance with the provisions hereof or thereof
and (B) a copy of the certificate of incorporation and by-laws of Company,
as in effect on the Closing Date;
(ii) a certificate or other evidence from the Secretary of State of
the State of Delaware, dated as of a date reasonably near the Closing
Date, as to the due incorporation and good standing of Company in such
state;
(iii) an incumbency certificate of Company as to the person or
persons authorized to execute and deliver this Agreement, the Indenture
and each other document to be executed by Company in connection with the
transactions contemplated hereby and thereby, and the specimen signatures
of such person or persons; and
(iv) one or more certificates of Loan Trustee and Subordination
Agent certifying to the reasonable satisfaction of Pass Through Trustees
as to the due authorization, execution, delivery and performance by Loan
Trustee and Subordination Agent of each of the Operative Documents to
which Loan Trustee or Subordination Agent is or will be a party and any
other documents to be executed by or on behalf of Loan Trustee or
Subordination Agent in connection with the transactions contemplated
hereby or thereby.
(f) On the Closing Date, the following statements shall be correct:
(i) the representations and warranties of Company herein are correct in all
material respects as though made on and as of such date, except to the extent
that such representations and warranties relate solely to an earlier date (in
which case such representations and warranties are correct on and as of such
earlier date) and (ii) no event has occurred and is continuing that constitutes
an Event of Default or an Event of Loss or would constitute an Event of Default
or Event of Loss but for the requirement that notice be given or time elapse or
both.
(g) Each Pass Through Trustee and Loan Trustee shall have received
(i) an opinion addressed to it from the General Counsel or an Associate General
Counsel of Company (or such other internal counsel to Company as shall be
reasonably satisfactory to Pass Through Trustees) substantially in the form set
forth in Exhibit A-1 and (ii) opinions addressed to it from Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ substantially in the forms set forth in Exhibits A-2 and A-3.
(h) Each Pass Through Trustee and Loan Trustee shall have received
an opinion addressed to it from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for State
Street, Loan Trustee and Subordination Agent, substantially in the form set
forth in Exhibit B.
(i) Each Pass Through Trustee and Loan Trustee shall have received
an opinion addressed to it from Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, A
Professional Corporation, special FAA counsel in Oklahoma City, Oklahoma,
substantially in the form set forth in Exhibit C.
(j) Each Pass Through Trustee and Loan Trustee shall have received a
certificate or certificates signed by the chief financial or accounting officer,
any Senior Vice President, the Treasurer, any Vice President or any Assistant
Treasurer (or any other Responsible Officer) of Company, dated the Closing Date,
certifying as to the correctness of each of the matters stated in Section
3.01(f).
(k) Each Pass Through Trustee shall have received a certificate from
State Street in its individual capacity and as Loan Trustee and Subordination
Agent, as applicable, dated the Closing Date, signed by an authorized officer of
State Street in its individual capacity and as Loan Trustee and Subordination
Agent, as applicable, certifying for each such entity that no Loan Trustee Liens
or Other Party Liens attributable to it, as applicable, exist, and further
certifying as to the correctness of each of the matters stated in Section 5.01.
(l) Each Pass Through Trustee shall have received opinions addressed
to it from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for Liquidity
Provider, substantially in the form set forth in Exhibit D-1, and from German
in-house counsel for Liquidity Provider, substantially in the form set forth in
Exhibit D-2.
(m) Loan Trustee shall have received an insurance report of an
independent insurance broker and the related certificates of insurance, each in
form and substance reasonably satisfactory to Loan Trustee, as to the compliance
with the terms of Section 7.06 of the Indenture relating to insurance with
respect to the Aircraft.
(n) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency at the time of the Closing to set aside,
restrain, enjoin or prevent the completion and consummation of this Agreement or
the transactions contemplated hereby.
(o) Company shall have entered into the Underwriting Agreement, the
Pass Through Certificates shall have been issued and sold pursuant to the
Underwriting Agreement and the Underwriters shall have transferred to Pass
Through Trustees in immediately available funds an amount at least equal to the
aggregate purchase price of the Equipment Notes to be purchased from Company.
(p) Loan Trustee shall have received an executed copy of the
Manufacturer's Consent substantially in the form set forth in Exhibit E.
(q) Each Pass Through Trustee shall have received an opinion from
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Policy Provider, substantially in the
form set forth in Exhibit G.
Promptly upon the recording of the Indenture (with the Indenture
Supplement attached) pursuant to the Transportation Code, Company will cause
Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, A Professional Corporation, special FAA
counsel in Oklahoma City, Oklahoma to deliver to Subordination Agent on behalf
of Pass Through Trustees, to Loan Trustee and to Company an opinion as to the
due recording of such instrument and the lack of filing of any intervening
documents with respect to the Aircraft.
Section 3.02 Conditions Precedent to Obligations of Company. The
obligation of Company to issue and sell the Equipment Notes is subject to the
fulfillment (or waiver by Company) prior to or on the Closing Date of the
following conditions precedent:
(a) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation
of law or governmental regulations for Company to enter into any transaction
contemplated by the Operative Documents or the Pass Through Trust Agreements.
(b) The documents referred to in Section 3.01(c) shall have been
duly authorized, executed and delivered by the respective party or parties
thereto (other than Company), shall be in full force and effect and executed
counterparts (or copies thereof where indicated) thereof shall have been
delivered to Company, and Company shall have received such documents and
evidence with respect to State Street, Liquidity Provider, Policy Provider, Loan
Trustee, Subordination Agent and each Pass Through Trustee as Company reasonably
requests in order to establish the consummation of the transactions contemplated
by this Agreement, the taking of all corporate and other proceedings in
connection therewith and compliance with the conditions herein set forth.
(c) The Indenture (with the Indenture Supplement covering the
Aircraft attached) shall have been duly filed for recordation (or shall be in
the process of being so duly filed for recordation) with the FAA pursuant to the
Transportation Code.
(d) On the Closing Date, the representations and warranties herein
of State Street, Loan Trustee, Subordination Agent and Pass Through Trustees
shall be correct as though made on and as of such date, except to the extent
that such representations and warranties relate solely to an earlier date (in
which case such representations and warranties shall have been correct on and as
of such earlier date), and, insofar as such representations and warranties
concern State Street, Loan Trustee, Subordination Agent or any Pass Through
Trustee, such party shall have so certified to Company.
(e) Company shall have received each opinion referred to in
Subsections 3.01(h), 3.01(i), 3.01(l) and 3.01(q), each such opinion (other than
3.01(l)) addressed to Company or accompanied by a letter from the counsel
rendering such opinion authorizing Company to rely on such opinion as if it were
addressed to Company, and the certificates referred to in Subsections
3.01(e)(iv) and 3.01(k).
(f) Company shall have received an opinion addressed to it from
▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for Pass Through Trustees, substantially in
the form set forth in Exhibit F.
(g) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency at the time of the Closing to set aside,
restrain, enjoin or prevent the completion and consummation of this Agreement or
the transactions contemplated hereby.
(h) Company shall have received a certificate from State Street
dated the Closing Date, signed by an authorized officer of State Street,
certifying for each Pass Through Trustee that no Other Party Liens attributable
to it exist and further certifying as to the correctness of each of the matters
stated in Section 5.01.
(i) Company shall have been paid by Pass Through Trustee for each
Pass Through Trust the aggregate original principal amount of the Equipment
Notes being issued to such Pass Through Trust as set forth on Schedule I
opposite the name of such Pass Through Trust.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF COMPANY
Section 4.01 Representations and Warranties of Company. Company
represents and warrants that:
(a) Company is a corporation duly incorporated and validly existing
in good standing under the laws of the State of Delaware, is a Certificated Air
Carrier, is a Citizen of the United States, has the corporate power and
authority to own its properties or hold them under lease and to enter into and
perform its obligations under the Operative Documents to which it is a party and
is duly qualified to do business as a foreign corporation in good standing in
each other jurisdiction in which the failure to so qualify would have a material
adverse effect on the consolidated financial condition of Company and its
subsidiaries, considered as a whole, and its jurisdiction of organization (as
such term is used in Article 9 of the Uniform Commercial Code as in effect in
the State of Georgia) is Delaware.
(b) The execution, delivery and performance by Company of this
Agreement and the other Operative Documents to which Company is a party have
been duly authorized by all necessary corporate action on the part of Company,
do not require any stockholder approval or approval or consent of any trustee or
holder of any indebtedness or obligations of Company, except such as have been
duly obtained and are in full force and effect, and do not contravene any law,
governmental rule, regulation, judgment or order binding on Company or the
certificate of incorporation or by-laws of Company or contravene or result in a
breach of, or constitute a default under, or result in the creation of any Lien
(other than as permitted under the Indenture) upon the property of Company
under, any material indenture, mortgage, contract or other agreement to which
Company is a party or by which it or any of its properties may be bound or
affected.
(c) Neither the execution and delivery by Company of this Agreement
and the other Operative Documents to which it is a party, nor the consummation
by Company of any of the transactions contemplated hereby or thereby, requires
the authorization, consent or approval of, the giving of notice to, the filing
or registration with or the taking of any other action in respect of, the
Department of Transportation, the FAA or any other federal or state governmental
authority or agency, except for (i) the registration of the Pass Through
Certificates (other than the Class D Pass Through Certificates) under the
Securities Act of 1933, as amended, and under the securities laws of any state
in which the Pass Through Certificates may be offered for sale if the laws of
such state require such action, (ii) the qualification of the Pass Through Trust
Agreements under the Trust Indenture Act of 1939, as amended, (iii) the orders,
permits, waivers, exemptions, authorizations and approvals of the regulatory
authorities having jurisdiction over Company's operation of the Aircraft
required to be obtained on or prior to the Closing Date, which orders, permits,
waivers, exemptions, authorizations and approvals have been duly obtained and
are, or on the Closing Date will be, in full force and effect, (iv) the filings
referred to in Section 4.01(e) and (v) consents, approvals, notices,
registrations and other actions required to be obtained, given, made or taken
only after the date hereof.
(d) This Agreement and each other Operative Document to which
Company is a party have been duly executed and delivered by Company and
constitute the legal, valid and binding obligations of Company enforceable
against Company in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general principles of
equity and except, in the case of the Indenture, as limited by applicable laws
that may affect the remedies provided in the Indenture.
(e) Except for (i) the filing for recordation pursuant to the
Transportation Code of the Indenture (with the Indenture Supplement covering the
Aircraft attached) and (ii) with respect to the security interests created by
such documents, the filing of financing statements (and continuation statements
at periodic intervals) under the Uniform Commercial Code of Georgia, no further
filing or recording of any document is necessary under the laws of the United
States or any state thereof as of the Closing Date in order to establish and
perfect the security interest in the Aircraft created under the Indenture in
favor of Loan Trustee as against Company and any third parties in any applicable
jurisdiction in the United States.
(f) Company is not an investment company or a company controlled by
an investment company within the meaning of the Investment Company Act of 1940,
as amended.
(g) As of the Closing Date, (i) Company has good title to the
Aircraft, free and clear of Liens other than Permitted Liens, (ii) the Aircraft
has been duly certificated by the FAA as to type and airworthiness in accordance
with the terms of the Indenture, (iii) the Indenture (with the Indenture
Supplement covering the Aircraft attached) has been duly filed for recordation
(or shall be in the process of being so duly filed for recordation) with the FAA
pursuant to the Transportation Code and (iv) the Aircraft is duly registered
with the FAA in the name of Company.
Section 4.02 General Indemnity. (a) Claims Defined. For the purposes
of this Section 4.02, "Claims" means any and all liabilities, obligations,
losses, damages, penalties, claims, actions, suits, costs or expenses of
whatsoever kind and nature (whether or not on the basis of negligence, strict or
absolute liability or liability in tort) that may be imposed on, incurred by,
suffered by or asserted against an Indemnitee, as defined below, and, except as
otherwise expressly provided in this Section 4.02, includes all reasonable
out-of-pocket costs, disbursements and expenses (including reasonable
out-of-pocket legal fees and expenses) actually incurred by an Indemnitee in
connection therewith or related thereto.
(b) Indemnitee Defined. For the purposes of this Section 4.02,
"Indemnitee" means (i) State Street and Loan Trustee, (ii) so long as it holds
any Equipment Notes as agent and trustee of any Pass Through Trustee,
Subordination Agent, (iii) so long as it is the holder of any Equipment Notes,
each Pass Through Trustee, (iv) Liquidity Provider and Policy Provider and (v)
each of their respective successors and permitted assigns in such capacities,
agents, servants, officers, employees and directors (the respective agents,
servants, officers, employees and directors of each of the foregoing
Indemnitees, as applicable, together with such Indemnitee, being collectively
the "Related Indemnitee Group" of such Indemnitee); provided that such Persons,
to the extent they are not signatories to this Agreement, have expressly agreed
in writing to be bound by the terms of this Section 4.02 prior to, or
concurrently with, the making of a Claim. If any Indemnitee fails to comply with
any duty or obligation under this Section 4.02 with respect to any Claim, such
Indemnitee shall not be entitled to any indemnity with respect to such Claim
under this Section 4.02 to the extent such failure was prejudicial to Company.
No holder of a Pass Through Certificate in its capacity as such holder shall be
an Indemnitee.
(c) Claims Indemnified. Subject to the exclusions stated in
Subsection 4.02(d), Company agrees to indemnify, protect, defend and hold
harmless on an After-Tax Basis each Indemnitee against Claims resulting from or
arising out of the sale, purchase, acceptance, non-acceptance or rejection of
the Aircraft under the Purchase Agreement or the ownership, possession, use,
non-use, substitution, airworthiness, control, maintenance, repair, operation,
registration, re-registration, condition, sale, lease, sublease, storage,
modification, alteration, return, transfer or other disposition of the Aircraft,
the Airframe, any Engine or any Part (including, without limitation, latent or
other defects, whether or not discoverable, and any claim for patent, trademark
or copyright infringement) by Company, any Permitted Lessee or any other Person.
Without limiting the foregoing and subject to, and without duplication of, the
provisions of Section 6.01(a), Company agrees to pay the reasonable ongoing
fees, and the reasonable out-of-pocket costs and expenses actually incurred
(including, without limitation, reasonable attorney's fees and disbursements
actually incurred and, to the extent payable as provided in the Indenture,
reasonable compensation and expenses of Loan Trustee's agents actually
incurred), of Loan Trustee in connection with the transactions contemplated
hereby.
(d) Claims Excluded. The following are excluded from Company's
agreement to indemnify an Indemnitee under this Section 4.02:
(i) any Claim to the extent such Claim is attributable to acts or
events occurring after (x) the Equipment Notes have been paid in full or
(y) the transfer of possession of the Aircraft pursuant to Article IV of
the Indenture except to the extent that such Claim is attributable to acts
occurring in connection with the exercise of remedies pursuant to Section
4.02 of the Indenture following the occurrence and continuance of an Event
of Default;
(ii) any Claim to the extent such Claim is, or is attributable to, a
Tax;
(iii) any Claim to the extent such Claim is attributable to the
negligence or willful misconduct of such Indemnitee or such Indemnitee's
Related Indemnitee Group;
(iv) any Claim to the extent such Claim is attributable to the
noncompliance by such Indemnitee or such Indemnitee's Related Indemnitee
Group with any of the terms of, or any misrepresentation by an Indemnitee
or its Related Indemnitee Group contained in, this Agreement, any other
Operative Document or any Pass Through Document to which such Indemnitee
or any of such Related Indemnitee Group is a party or any agreement
relating hereto or thereto;
(v) any Claim to the extent such Claim constitutes a Permitted Lien
attributable to such Indemnitee;
(vi) any Claim to the extent such Claim is attributable to the
offer, sale, assignment, transfer, participation or other disposition
(whether voluntary or involuntary) by or on behalf of such Indemnitee or
its Related Indemnitee Group (other than during the occurrence and
continuance of an Event of Default provided that any such offer, sale,
assignment, transfer, participation or other disposition during the
occurrence and continuation of an Event of Default shall not be subject to
indemnification unless it is made in accordance with the Indenture and
applicable law) of any Equipment Note or Pass Through Certificate, all or
any part of such Indemnitee's interest in the Operative Documents or the
Pass Through Documents or any interest in the Collateral or any similar
security;
(vii) any Claim to the extent such Claim is attributable to (A) a
failure on the part of Loan Trustee to distribute in accordance with this
Agreement or the Indenture any amounts received and distributable by it
hereunder or thereunder, (B) a failure on the part of Subordination Agent
to distribute in accordance with the Intercreditor Agreement any amounts
received and distributable by it thereunder or (C) a failure on the part
of any Pass Through Trustee to distribute in accordance with the Pass
Through Trust Agreement to which it is a party any amounts received and
distributable by it thereunder;
(viii) any Claim to the extent such Claim is attributable to the
authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any Operative Document or
any Pass Through Document, other than such as have been requested by
Company or that occur as the result of an Event of Default, or such as are
expressly required or contemplated by the provisions of the Operative
Documents or the Pass Through Documents;
(ix) any Claim to the extent such Claim is payable or borne by (a)
Company pursuant to any indemnification, compensation or reimbursement
provision of any other Operative Document or any Pass Through Document or
(b) a Person other than Company pursuant to any provision of any Operative
Document or any Pass Through Document;
(x) any Claim to the extent such Claim is an ordinary and usual
operating or overhead expense or not an out-of-pocket expense actually
incurred;
(xi) any Claim to the extent such Claim is incurred on account of or
asserted as a result of any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code;
(xii) any Claim to the extent such Claim is attributable to one or
more of the other aircraft financed through the offering of Pass Through
Certificates (in the event of doubt, any Claim shall be allocated between
the Aircraft and such other aircraft in the same proportion that the then
outstanding Equipment Notes bear to the then outstanding equipment notes
issued with respect to the other aircraft and held by Pass Through
Trustees); and
(xiii) any Claim by an Indemnitee related to the status of such
Indemnitee as a passenger or shipper on any of Company's aircraft or as a
party to a marketing or promotional or other commercial agreement with
Company.
(e) Insured Claims. In the case of any Claim indemnified by Company
hereunder that is covered by a policy of insurance maintained by Company, each
Indemnitee agrees to cooperate, at Company's expense, with the insurers in the
exercise of their rights to investigate, defend and compromise such Claim.
(f) Claims Procedure. An Indemnitee shall promptly notify Company of
any Claim as to which indemnification is sought. The failure to provide such
prompt notice shall not release Company from any of its obligations to indemnify
hereunder except to the extent that Company is prejudiced by such failure or
Company's indemnification obligations are increased as a result of such failure.
Such Indemnitee shall promptly submit to Company all additional information in
such Indemnitee's possession to substantiate such Claim as Company reasonably
requests. Subject to the rights of Company's insurers, Company may, at its sole
cost and expense, investigate any Claim, and may in its sole discretion defend
or compromise any Claim. At Company's expense, any Indemnitee shall cooperate
with all reasonable requests of Company in connection therewith. Such Indemnitee
shall not enter into a settlement or other compromise with respect to any Claim
without the prior written consent of Company, which consent shall not be
unreasonably withheld or delayed, unless such Indemnitee waives its right to be
indemnified with respect to such Claim. Where Company or its insurers undertake
the defense of an Indemnitee with respect to a Claim, no additional legal fees
or expenses of such Indemnitee in connection with the defense of such Claim
shall be indemnified hereunder unless such fees or expenses were incurred at the
written request of Company or such insurers. Subject to the requirements of any
policy of insurance, an Indemnitee may participate at its own expense in any
judicial proceeding controlled by Company pursuant to the preceding provisions;
provided that such party's participation does not, in the opinion of counsel
appointed by Company or its insurers to conduct such proceedings, interfere with
such control. Such participation shall not constitute a waiver of the
indemnification provided in this Section 4.02. Notwithstanding anything to the
contrary contained herein, Company shall not under any circumstances be liable
for the fees and expenses of more than one counsel for all Indemnitee with
respect to any one Claim.
(g) Subrogation. To the extent that a Claim is in fact paid in full
by Company or its insurer, Company or such insurer (as the case may be) shall,
without any further action, be subrogated to the rights and remedies of the
Indemnitee on whose behalf such Claim was paid with respect to the transaction
or event giving rise to such Claim. Such Indemnitee shall give such further
assurances or agreements and shall cooperate with Company or such insurer, as
the case may be, to permit Company or such insurer to pursue such rights and
remedies, if any, to the extent reasonably requested by Company. So long as no
Event of Default has occurred and is continuing, if an Indemnitee receives any
payment, in whole or in part, from any party other than Company or its insurers
with respect to any Claim paid by Company or its insurers, it shall promptly pay
over to Company the amount received (but not an amount in excess of the amount
Company or any of its insurers has paid in respect of such Claim). Any amount
referred to in the preceding sentence that is payable to Company shall not be
paid to Company, or, if it has been previously paid directly to Company, shall
not be retained by Company, if at the time of such payment an Event of Default
has occurred and is continuing, but shall be paid to and held by Loan Trustee as
security for the obligations of Company under the Operative Documents. If
Company agrees, such amount payable shall be applied against Company's
obligations thereunder when and as they become due and payable. At such time as
such Event of Default is no longer continuing, such amount, to the extent not
previously so applied against Company's obligations, shall be paid to Company.
If any such amount has been so held by Loan Trustee as security for more than 90
days after any such Event of Default has occurred, during which period (i) Loan
Trustee was not limited by operation of law or otherwise from exercising
remedies under the Indenture and (ii) Loan Trustee did not exercise any remedy
available to it under Section 4.02 of the Indenture, then any remaining amount
shall be paid to Company.
(h) No Guaranty. Nothing set forth in this Section 4.02 constitutes
a guarantee by Company that the Aircraft at any time will have any particular
value, useful life or residual value.
(i) Payments; Interest. Any amount payable to any Indemnitee on
account of a Claim shall be paid within 30 days after receipt by Company of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the Claims that are the subject of and basis for
such indemnity and the computation of the amount payable. Any payments made
pursuant to this Section 4.02 directly to an Indemnitee or to Company, as the
case may be, shall be made in immediately available funds at such bank or to
such account as is specified by the payee in written directions to the payor or,
if no such directions are given, by check of the payor payable to the order of
the payee and mailed to the payee by certified mail, return receipt requested,
postage prepaid to its address referred to in Section 7.01. To the extent
permitted by applicable law, interest at the Past Due Rate shall be paid, on
demand, on any amount or indemnity not paid when due pursuant to this Section
4.02 until the same is paid. Such interest shall be paid in the same manner as
the unpaid amount in respect of which such interest is due.
(j) Tax deduction or credit. If, by reason of any Claim payment made
to or for the account of an Indemnitee by Company pursuant to this Section 4.02,
such Indemnitee subsequently realizes a tax deduction or credit (including
foreign tax credit and any reduction in Taxes) not previously taken into account
in computing such payment, such Indemnitee shall promptly pay to Company, but
only if Company has made all payments then due and owing to such Indemnitee
under the Operative Documents, an amount equal to the sum of (1) the actual
reduction in Taxes realized by such Indemnitee which is attributable to such
deduction or credit, and (2) the actual reduction in Taxes realized by such
Indemnitee as a result of any payment made by such Indemnitee pursuant to this
sentence.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01 Representations, Warranties and Covenants of State
Street. State Street, generally, and each of Loan Trustee, Subordination Agent
and Pass Through Trustee as it relates to it, represents, warrants and covenants
that:
(a) State Street is a national banking association duly organized
and validly existing in good standing under the laws of the United States, is
eligible to be Loan Trustee under Section 8.01(a) of the Indenture, will
promptly comply with Section 8.01(a) of the Indenture and has full power,
authority and legal right to enter into and perform its obligations under each
of the Operative Documents and the Pass Through Documents to which State Street,
Loan Trustee, Subordination Agent or any Pass Through Trustee is a party and, in
its capacity as Loan Trustee and Pass Through Trustee, respectively, to
authenticate the Equipment Notes and the Pass Through Certificates,
respectively. State Street is qualified to act as Loan Trustee under Section
8.01(c) of the Indenture.
(b) The execution, delivery and performance by State Street,
individually or in its capacity as Loan Trustee, Subordination Agent or Pass
Through Trustee, as the case may be, of this Agreement, each of the other
Operative Documents and each of the Pass Through Documents to which State
Street, Loan Trustee, Subordination Agent or any Pass Through Trustee is a
party, and the authentication of the Equipment Notes and the Pass Through
Certificates, respectively, to be delivered on the Closing Date, have been duly
authorized by all necessary action on the part of State Street, Loan Trustee,
Subordination Agent and each Pass Through Trustee, as the case may be, and do
not violate any law or regulation of the United States or of the state of the
United States in which State Street is located and which governs the banking and
trust powers of State Street or any order, writ, judgment or decree of any
court, arbitrator or governmental authority applicable to State Street, Loan
Trustee, Subordination Agent or any Pass Through Trustee or any of their assets,
will not violate any provision of the articles of association or by-laws of
State Street and will not violate any provision of, or constitute a default
under, any mortgage, indenture, contract, agreement or undertaking to which any
of State Street, Loan Trustee, Subordination Agent or any Pass Through Trustee
is a party or by which any of them or their respective properties may be bound
or affected.
(c) Neither the execution and delivery by State Street, individually
or in its capacity as Loan Trustee, Subordination Agent or Pass Through Trustee,
as the case may be, of this Agreement, any other Operative Document or any Pass
Through Document to which State Street, Loan Trustee, Subordination Agent or any
Pass Through Trustee is a party, nor the consummation by State Street, Loan
Trustee, Subordination Agent or any Pass Through Trustee of any of the
transactions contemplated hereby or thereby, requires the authorization, consent
or approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
of the United States or the state of the United States where State Street is
located and regulating the banking and trust powers of State Street.
(d) This Agreement, each other Operative Document and each Pass
Through Document to which State Street, Loan Trustee, Subordination Agent or any
Pass Through Trustee is a party have been duly executed and delivered by State
Street, individually and in its capacity as Loan Trustee, Subordination Agent or
Pass Through Trustee, as the case may be, and constitute the legal, valid and
binding obligations of State Street, Loan Trustee, Subordination Agent and such
Pass Through Trustee, as the case may be, enforceable against it in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
(e) It unconditionally agrees with and for the benefit of the
parties to this Agreement that it will not directly or indirectly create, incur,
assume or suffer to exist any Loan Trustee Lien or Other Party Lien attributable
to it, and it agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such Lien;
and it shall indemnify, protect, defend and hold harmless each Indemnitee and
Company against Claims in any way resulting from or arising out of a breach by
it of its obligations under this Section 5.01(e).
(f) The Equipment Notes to be issued to Subordination Agent pursuant
hereto are being acquired by it to be held under the Intercreditor Agreement.
(g) Each of State Street, Loan Trustee, Subordination Agent and each
Pass Through Trustee agrees that it will not impose any lifting charge, cable
charge, remittance charge or any other charge or fee on any transfer by Company
of funds to, through or by State Street, Loan Trustee, Subordination Agent or
such Pass Through Trustee pursuant to this Agreement, any other Operative
Document or any Pass Through Document, except as may be otherwise agreed to in
writing by Company.
(h) Each of State Street, Loan Trustee, Subordination Agent and any
Pass Through Trustee agrees to be bound by the terms of Section 10.16 of the
Indenture.
(i) There are no Taxes payable by State Street, Loan Trustee,
Subordination Agent or any Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof in
connection with the execution, delivery or performance by State Street, Loan
Trustee, Subordination Agent or any Pass Through Trustee of any Operative
Document or any Pass Through Document (other than franchise or other taxes based
on or measured by any fees or compensation received by any such Person for
services rendered in connection with the transactions contemplated by the
Operative Documents or the Pass Through Documents), and there are no Taxes
payable by any Pass Through Trustee imposed by the State of Connecticut or any
political subdivision thereof in connection with the acquisition, possession or
ownership by such Pass Through Trustee of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or compensation
received by such Pass Through Trustee for services rendered in connection with
the transactions contemplated by the Operative Documents or the Pass Through
Documents) and, assuming that the Pass Through Trusts will not be taxable for
Federal income tax purposes as corporations, but, rather, will be characterized
for such purposes as grantor trusts or partnerships, the Pass Through Trusts
will not be subject to any Taxes imposed by the State of Connecticut or any
political subdivision thereof.
(j) Except with the consent of Company, which shall not be
unreasonably withheld, State Street will act as Pass Through Trustee solely
through its offices within the State of Connecticut, except for such services
that may be performed for it by various agents, but not directly by it, in other
states.
(k) There are no pending or, to its knowledge, threatened actions or
proceedings against State Street, Loan Trustee, Subordination Agent or any Pass
Through Trustee before any court or administrative agency which individually or
in the aggregate, if determined adversely to it, would materially adversely
affect the ability of State Street, Loan Trustee, Subordination Agent or any
Pass Through Trustee to perform its obligations under any Operative Document or
any Pass Through Document.
(l) The representations and warranties contained in Section 7.15 of
each Pass Through Trust Agreement are true, complete and correct as of the
Closing Date.
ARTICLE 6
OTHER COVENANTS AND AGREEMENTS
Section 6.01 Other Agreements. (a) Company agrees promptly to pay
(without duplication of any other obligation Company may have to pay such
amounts) (A) the initial and annual fees and (to the extent Loan Trustee is
entitled to be reimbursed for its reasonable expenses) the reasonable expenses
of Loan Trustee in connection with the transactions contemplated hereby and (B)
the following expenses incurred by Loan Trustee, Subordination Agent and Pass
Through Trustees in connection with the negotiation, preparation, execution and
delivery of this Agreement, the other Operative Documents and the other
documents or instruments referred to herein or therein:
(i) the reasonable fees, expenses and disbursements of (x) ▇▇▇▇▇▇▇
▇▇▇▇ LLP, special counsel for Loan Trustee, Subordination Agent and Pass
Through Trustees and (y) Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, A
Professional Corporation, special FAA counsel in Oklahoma City, Oklahoma,
in each case to the extent actually incurred; and
(ii) all reasonable expenses incurred in connection with printing
and document production or reproduction expenses, and in connection with
the filing of Uniform Commercial Code financing statements.
(b) Loan Trustee, Noteholders, Subordination Agent and each Pass
Through Trustee agree to execute and deliver, at Company's expense, all such
documents as Company reasonably requests for the purpose of continuing the
registration of the Aircraft at the FAA in Company's name. In addition, each of
Loan Trustee, Subordination Agent, each Pass Through Trustee and any other
Noteholder agrees, for the benefit of Company, to cooperate with Company in
effecting any foreign registration of the Aircraft pursuant to Section 7.02(e)
of the Indenture; provided that prior to any such change in the country of
registry of the Aircraft the conditions set forth in Section 7.02(e) of the
Indenture are met to the reasonable satisfaction of, or waived by, Loan Trustee.
(c) Each of State Street, Loan Trustee, Subordination Agent, each
Pass Through Trustee and any other Noteholder agrees that, unless an Event of
Default shall have occurred and be continuing, it shall not take any action
contrary to, or otherwise in any way interfere with or disturb (and then only in
accordance with the Indenture), the quiet enjoyment of the use and possession of
the Aircraft, the Airframe, any Engine or any Part by Company or any transferee
of any interest in any thereof permitted under the Indenture.
(d) Each Noteholder, including, without limitation, Subordination
Agent and each Pass Through Trustee, unconditionally agrees with and for the
benefit of the parties to this Agreement that it will not directly or indirectly
create, incur, assume or suffer to exist any Noteholder Liens, and such
Noteholder agrees that it will, at its own cost and expense, promptly take such
action as may be necessary to discharge and satisfy in full any such Noteholder
Lien; and each Noteholder hereby agrees to indemnify, protect, defend and hold
harmless each Indemnitee and Company against Claims in any way resulting from or
arising out of a breach by it of its obligations under this Section 6.01(d).
(e) By its acceptance of its Equipment Notes, each Noteholder (i)
unconditionally agrees for the benefit of Company and Loan Trustee to be bound
by and to perform and comply with all of the terms of such Equipment Notes, the
Indenture and this Agreement applicable to such Noteholder and (ii) agrees that
it will not transfer any Equipment Note (or any part thereof) to any entity
unless such entity makes (or is deemed to have made) a representation and
warranty as of the date of transfer that either no part of the funds to be used
by it for the purchase and holding of such Equipment Note (or any part thereof)
constitutes assets of any "employee benefit plan" or that such purchase and
holding will not result in a non-exempt prohibited transaction under Section
4975 of the Code and Section 406 of ERISA.
(f) Each of Company, Loan Trustee, each Pass Through Trustee and
Subordination Agent covenants that (i) until one year and one day after the
Series G-1 Equipment Notes have been paid in full, it shall not acquiesce,
petition or otherwise invoke or cause or join in invoking or causing the Class
G-1 Pass Through Trust or any other Person to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
(whether voluntary or not) against the Class G-1 Pass Through Trust under any
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Class G-1 Pass Through Trust or any substantial part of its property or ordering
the winding-up or liquidation of the affairs of the Class G-1 Pass Through
Trust, (ii) until one year and one day after the Series G-2 Equipment Notes have
been paid in full, it shall not acquiesce, petition or otherwise invoke or cause
or join in invoking or causing the Class G-2 Pass Through Trust or any other
Person to invoke the process of any governmental authority for the purpose of
commencing or sustaining a case (whether voluntary or not) against the Class G-2
Pass Through Trust under any bankruptcy, insolvency or similar law or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Class G-2 Pass Through Trust or any substantial part of
its property or ordering the winding-up or liquidation of the affairs of the
Class G-2 Pass Through Trust, (iii) until one year and one day after the Series
C Equipment Notes have been paid in full, it shall not acquiesce, petition or
otherwise invoke or cause or join in invoking or causing the Class C Pass
Through Trust or any other Person to invoke the process of any governmental
authority for the purpose of commencing or sustaining a case (whether voluntary
or not) against the Class C Pass Through Trust under any bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Class C Pass Through
Trust or any substantial part of its property or ordering the winding-up or
liquidation of the affairs of the Class C Pass Through Trust and (iv) until one
year and one day after the Series D Equipment Notes have been paid in full, it
shall not acquiesce, petition or otherwise invoke or cause or join in invoking
or causing the Class D Pass Through Trust or any other Person to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case (whether voluntary or not) against the Class D Pass Through
Trust under any bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Class D Pass Through Trust or any substantial part of its property or
ordering the winding-up or liquidation of the affairs of the Class D Pass
Through Trust.
Section 6.02 Certain Covenants of Company. Company covenants and
agrees with Loan Trustee as follows:
(a) On and after the Closing, Company will cause to be done,
executed, acknowledged and delivered such further acts, conveyances and
assurances as Loan Trustee reasonably requests for accomplishing the purposes of
this Agreement and the other Operative Documents; provided that any instrument
or other document so executed by Company will not expand any obligations or
limit any rights of Company in respect of the transactions contemplated by the
Operative Documents.
(b) Company will cause the Indenture (with the Indenture Supplement
covering the Aircraft attached) to be promptly filed and recorded, or filed for
recording, with the FAA to the extent permitted under the Transportation Code
and the rules and regulations of the FAA thereunder.
(c) Company, at its expense, will take, or cause to be taken, such
action with respect to the recording, filing, re-recording and refiling of the
Indenture and any financing statements or other instruments as are necessary to
maintain, so long as the Indenture is in effect, the perfection of the security
interests created by the Indenture or will furnish Loan Trustee timely notice of
the necessity of such action, together with such instruments, in execution form,
and such other information as may be required to enable Loan Trustee to take
such action. In addition, Company will pay any and all recording, stamp and
other similar taxes payable in the United States, and in any other jurisdiction
where the Aircraft is registered, in connection with the execution, delivery,
recording, filing, re-recording and refiling of the Indenture or any such
financing statements or other instruments. Company will notify Loan Trustee of
any change in its jurisdiction of organization (as such term is used in Article
9 of the Uniform Commercial Code as in effect in the State of Delaware) promptly
after making such change or in any event within the period of time necessary
under applicable law to prevent the lapse of perfection (absent refiling) of
financing statements filed under the Operative Documents.
(d) Company shall at all times maintain its corporate existence
except as permitted by Subsection 6.02(e).
(e) Company shall not consolidate with or merge into any other
Person or convey, transfer or lease substantially all of its assets as an
entirety to any Person, unless:
(i) the successor or transferee entity shall, if and to the extent
required under Section 1110 in order that Loan Trustee continues to be
entitled to any benefits of Section 1110 with respect to the Aircraft, be
a Citizen of the United States and a Certificated Air Carrier and shall
execute and deliver to Loan Trustee an agreement containing the express
assumption by such successor or transferee entity of the due and punctual
performance and observance of each covenant and condition of the Operative
Documents to which Company is a party to be performed or observed by
Company;
(ii) immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing; and
(iii) Company shall deliver to Loan Trustee a certificate signed by
a Responsible Officer of Company, and an opinion of counsel (which may be
internal counsel to Company), each stating that such consolidation,
merger, conveyance, transfer or lease and the assumption agreement
mentioned in clause (i) above comply with this Subsection 6.02(e) and that
all conditions precedent herein relating to such transaction have been
complied with (except that such opinion need not cover the matters
referred to in clause (ii) above and may rely, as to factual matters, on a
certificate of an officer of Company) and, in the case of such opinion,
that such assumption agreement has been duly authorized, executed and
delivered by such successor Person and is enforceable against such
successor Person in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and by general
principles of equity.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of Company as an entirety in accordance
with this Subsection 6.02(e), the successor Person formed by such consolidation
or into which Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, Company under this Agreement and the other Operative Documents
with the same effect as if such successor Person had been named as Company
herein.
(f) Company shall remain a Certificated Air Carrier for as long as
and to the extent required under Section 1110 in order that Loan Trustee shall
be entitled to any of the benefits of Section 1110 with respect to the Aircraft.
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by registered or certified United States mail, courier
service or facsimile or any other customary means of communication, and any such
notice shall be effective when delivered (or, if delivered by facsimile, upon
completion of transmission and confirmation by the sender (by a telephone call
to a representative of the recipient or by machine confirmation) that such
transmission was received) addressed as follows:
if to Company, addressed to:
Delta Air Lines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer, Dept. 856
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the General Counsel at the same address, but Dept. 971
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to State Street, Loan Trustee, Subordination Agent or any Pass Through
Trustee, addressed to:
State Street Bank And Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or if to any subsequent Noteholder, addressed to such Noteholder at its address
set forth in the Equipment Note Register maintained pursuant to Section 2.07 of
the Indenture.
Any party, by notice to the other parties hereto, may designate
different addresses for subsequent notices or communications. Whenever the words
"notice" or "notify" or similar words are used herein, they mean the provision
of formal notice as set forth in this Section 7.01.
Section 7.02 Survival of Representations, Warranties, Indemnities,
Covenants and Agreements. Except as otherwise provided herein, the
representations, warranties, indemnities, covenants and agreements of Company,
State Street, Loan Trustee, Subordination Agent, each Pass Through Trustee and
Noteholders herein, and each of their obligations hereunder, shall survive the
making of the loans and the expiration or termination (to the extent arising out
of acts or events occurring prior to such expiration) of any Operative
Documents.
Section 7.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.05 No Oral Modifications or Continuing Waivers; Consents.
Subject to Section 9.03 of the Indenture, no terms or provisions of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which the enforcement of
the change, waiver, discharge or termination is sought. No such change, waiver,
discharge or termination shall be effective unless a signed copy thereof is
delivered to Loan Trustee. Each Pass Through Trustee and, by its acceptance of
an Equipment Note, each subsequent Noteholder covenants and agrees that it shall
not unreasonably withhold its consent to any consent of Loan Trustee requested
by Company under the Indenture.
Section 7.06 Effect of Headings and Table of Contents. The headings
of the various Articles and Sections herein and in the Table of Contents are for
convenience of reference only and do not define or limit any of the terms or
provisions hereof.
Section 7.07 Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by Company, by State Street,
individually or as Loan Trustee, Subordination Agent or Pass Through Trustee, or
by any Noteholder, shall bind and inure to the benefit of and be enforceable by
Company, and subject to the terms of Section 6.02(e), its successors and
permitted assigns, each Pass Through Trustee and any successor or other trustee
under the Pass Through Trust Agreement to which it is a party, Subordination
Agent and its successor under the Intercreditor Agreement and Loan Trustee and
its successor under the Indenture, whether so expressed or not.
Section 7.08 Benefits of Agreement. Nothing in this Agreement,
express or implied, gives to any Person, other than the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement, except as expressly provided herein. Company agrees
and acknowledges that Liquidity Provider and Policy Provider shall be third
party beneficiaries of the covenants and agreements of Company with respect to
the Mandatory Documents Terms and the Mandatory Economic Terms and the
indemnities contained in Section 4.02 and may rely on the covenants and
agreements of Company with respect to the Mandatory Documents Terms and the
Mandatory Economic Terms and such indemnities to the same extent as if the
covenants and agreements of Company with respect to the Mandatory Documents
Terms and the Mandatory Economic Terms and such indemnities were made to
Liquidity Provider and Policy Provider directly.
Section 7.09 Counterparts. This Agreement may be executed in any
number of counterparts. Each of the parties hereto shall not be required to
execute the same counterpart. Each counterpart of this Agreement including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Agreement, but all of such counterparts shall
together constitute one instrument.
Section 7.10 Submission to Jurisdiction. Each of the parties hereto,
to the extent it may do so under applicable law, for purposes hereof and of all
other Operative Documents hereby (a) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto, or their successors or permitted assigns and (b)
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
DELTA AIR LINES, INC.
By: ______________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as Pass
Through Trustee under each of the Pass
Through Trust Agreements
By: ______________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent
By: ______________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as Loan
Trustee
By: ______________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, in its
individual capacity as set forth herein
By: ______________________________________________
Name:
Title:
SCHEDULE I to
PARTICIPATION AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
Original
Description of Principal
Purchaser Equipment Notes Maturity Interest Rate Amount
------------------------ ----------------- --------------- ------------- --------------
Delta Air Lines Pass Series 2002-1G-1
Through Trust Equipment Note
2002-1G-1 EN-1G1-001 January 2, 2012 6.718% $16,536,158.27
Delta Air Lines Pass Series 2002-1G-2
Through Trust Equipment Note
2002-1G-2 EN-1G2-001 July 2, 2012 6.417% $29,011,605.76
Series 2002-1C
Delta Air Lines Pass Equipment Note
Through Trust 2002-1C EN-1C-001 January 2, 2010 7.779% $6,782,455.39
Series 2002-1D
Delta Air Lines Pass Equipment Note
Through Trust 2002-1D EN-1D-001 July 2, 2007 8.270% $7,324,324.89
SCHEDULE II to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 2002-1G-1, dated as of April 30, 2002, between
Company and Pass Through Trustee in respect of Delta Air Lines Pass Through
Trust 2002-1G-1.
Trust Supplement No. 2002-1G-2, dated as of April 30, 2002, between
Company and Pass Through Trustee in respect of Delta Air Lines Pass Through
Trust 2002-1G-2.
Trust Supplement No. 2002-1C, dated as of April 30, 2002, between
Company and Pass Through Trustee in respect of Delta Air Lines Pass Through
Trust 2002-1C.
Trust Supplement No. 2002-1D, dated as of April 30, 2002, between
Company and Pass Through Trustee in respect of Delta Air Lines Pass Through
Trust 2002-1D.
EXHIBIT A-1 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR COMPANY
[Intentionally Omitted]
EXHIBIT A-2 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR COMPANY
[Intentionally Omitted]
EXHIBIT A-3 to
PARTICIPATION AGREEMENT
FORM OF ss. 1110 OPINION OF
SPECIAL COUNSEL FOR COMPANY
[Intentionally Omitted]
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR LOAN TRUSTEE,
SUBORDINATION AGENT AND STATE STREET
[Intentionally Omitted]
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL FAA COUNSEL
[Intentionally Omitted]
EXHIBIT D-1 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF SPECIAL
COUNSEL FOR LIQUIDITY PROVIDER
[Intentionally Omitted]
EXHIBIT D-2 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF GERMAN IN-HOUSE
COUNSEL FOR LIQUIDITY PROVIDER
[Intentionally Omitted]
EXHIBIT E to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
[Intentionally Omitted]
EXHIBIT F TO
PARTICIPATION AGREEMENT
FORM OF OPINION
SPECIAL COUNSEL FOR PASS THROUGH TRUSTEES
[Intentionally Omitted]
EXHIBIT G TO
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR POLICY PROVIDER
[Intentionally Omitted]
