PARTICIPATION AGREEMENT [___] Dated as of [_____________] Among CONTINENTAL AIRLINES, INC., Owner, and WILMINGTON TRUST COMPANY, Not in its individual capacity except as expressly provided herein, but solely as Mortgagee, Subordination Agent under the...
|
EXHIBIT
B
|
|
TO
|
|
NOTE
PURCHASE AGREEMENT
|
|
CONFIDENTIAL:
Subject
to Restrictions on Dissemination
Set
Forth in Section 7 of this
Agreement
|
PARTICIPATION
AGREEMENT [___]
Dated
as
of [_____________]
Among
CONTINENTAL
AIRLINES, INC.,
Owner,
and
WILMINGTON
TRUST COMPANY,
Not
in
its individual capacity
except
as
expressly provided herein,
but
solely as Mortgagee, Subordination Agent
under
the
Intercreditor Agreement and Pass Through Trustee
under
each of the Applicable Pass Through Trust Agreements
____________________________
One
Boeing Model [_________] Aircraft
Bearing
Manufacturer’s Serial No.[______]
and
U.S.
Registration No. N[_______]
|
SECTION
1. DEFINITIONS AND CONSTRUCTION
|
2
|
|
SECTION
2. SECURED LOANS; CLOSING
|
2
|
|
2
|
|
|
2.2
Closing
|
3
|
|
SECTION
3. [Intentionally omitted]
|
3
|
|
SECTION
4. CONDITIONS PRECEDENT
|
3
|
|
3
|
|
|
7
|
|
|
8
|
|
|
9
|
|
|
SECTION
5. REPRESENTATIONS AND WARRANTIES
|
9
|
|
9
|
|
|
13
|
|
|
SECTION
6. COVENANTS, UNDERTAKINGS AND AGREEMENTS
|
17
|
|
17
|
|
|
6.2
Covenants of WTC
|
19
|
|
20
|
|
|
6.4
Agreements
|
21
|
|
SECTION
7. CONFIDENTIALITY
|
25
|
|
SECTION
8. INDEMNIFICATION AND EXPENSES
|
26
|
|
26
|
|
|
8.2
Expenses
|
32
|
|
33
|
|
|
8.4
Payments
|
43
|
|
8.5
Interest
|
43
|
|
43
|
|
|
SECTION
9. ASSIGNMENT OR TRANSFER OF INTEREST
|
44
|
|
9.1
Note Holders
|
44
|
|
44
|
|
|
SECTION
10. SECTION 1110
|
45
|
PAGE
i
|
SECTION
11. CHANGE OF CITIZENSHIP
|
45
|
|
11.1
Generally
|
45
|
|
11.2
Mortgagee
|
45
|
|
SECTION
12. MISCELLANEOUS
|
45
|
|
12.1
Amendments
|
45
|
|
12.2
Severability
|
46
|
|
12.3
Survival
|
46
|
|
46
|
|
|
12.5
Counterparts
|
47
|
|
12.6
No Waiver
|
47
|
|
12.7
Notices
|
47
|
|
48
|
|
|
49
|
|
|
12.10
Entire Agreement
|
49
|
|
12.11
Further Assurances
|
49
|
SCHEDULES
AND EXHIBITS
|
SCHEDULE
1 -
|
|
|
SCHEDULE
2 -
|
|
|
SCHEDULE
3 -
|
|
|
SCHEDULE
4 -
|
|
|
EXHIBIT
A -
|
Opinion
of special counsel to Owner
|
|
EXHIBIT
B -
|
Opinion
of corporate counsel to Owner
|
|
EXHIBIT
C -
|
Opinion
of special counsel to Mortgagee and to the Applicable Pass Through
Trustees
|
|
EXHIBIT
D -
|
Opinion
of special counsel in Oklahoma City,
Oklahoma
|
PARTICIPATION
AGREEMENT [___]
PARTICIPATION
AGREEMENT[____], dated as of [____________] (this “Agreement”), among
(a) CONTINENTAL AIRLINES, INC., a Delaware corporation (“Owner”),
(b) WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity, except as expressly provided herein, but solely as
Mortgagee (in its capacity as Mortgagee, “Mortgagee” and in its individual
capacity, “WTC”), (c) WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly provided herein, but solely as Pass Through
Trustee under each of the Applicable Pass Through Trust Agreements (each, an
“Applicable Pass Through Trustee”) and (d) WILMINGTON TRUST COMPANY, not in
its individual capacity, except as expressly provided herein, but solely as
Subordination Agent under the Intercreditor Agreement (“Subordination
Agent”).
RECITALS
A. Owner
and
Airframe Manufacturer have entered into the Purchase Agreement, pursuant to
which, among other things, Airframe Manufacturer has agreed to manufacture
and
sell to Owner and Owner has agreed to purchase from Airframe Manufacturer,
certain aircraft, including the Aircraft.
B. Pursuant
to each of the Pass Through Trust Agreements, the Pass Through Trusts were
created and the Pass Through Certificates were issued and sold.
C. Each
Applicable Pass Through Trustee has agreed to use a portion of the proceeds
from
the issuance and sale of the Pass Through Certificates issued by each Applicable
Pass Through Trust to purchase from Owner, on behalf of the related Applicable
Pass Through Trust, the Equipment Note bearing the same interest rate as the
Pass Through Certificates issued by such Pass Through Trust.
D. Owner
and
Mortgagee, concurrently with the execution and delivery hereof, have entered
into the Trust Indenture for the benefit of the Note Holders, pursuant to which,
among other things, Owner agrees (1) to issue Equipment Notes, in the amounts
and otherwise as provided in the Trust Indenture, and (2) to mortgage,
pledge and assign to Mortgagee all of Owner’s right, title and interest in the
Collateral to secure the Secured Obligations, including, without limitation,
Owner’s obligations under the Equipment Notes.
E. The
parties hereto wish to set forth in this Agreement the terms and conditions
upon
and subject to which the aforesaid transactions shall be effected.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION
1. DEFINITIONS
AND CONSTRUCTION
Capitalized
terms used but not defined herein (including in the initial paragraph and
Recitals above) shall have the respective meanings set forth or incorporated
by
reference, and shall be construed and interpreted in the manner described,
in
Annex A to the Trust Indenture.
SECTION
2. SECURED
LOANS; CLOSING
2.1 Making
of Loans and Issuance of Equipment Notes
Subject
to the terms and conditions of this Agreement, on the date hereof or on such
other date agreed to by the parties hereto (the “Closing Date”):
|
(a)
|
Each
Applicable Pass Through Trustee listed on Schedule 2 shall make a
secured
loan to the Owner in the amount in Dollars opposite such Trustee’s name on
Schedule 2; and
|
|
(b)
|
The
Owner shall issue, pursuant to and in accordance with the provisions
of
Article II of the Trust Indenture, to the Subordination Agent as
the
registered holder on behalf of each such Applicable Pass Through
Trustee,
one or more Equipment Notes, dated the Closing Date, of the Series
set
forth opposite such Trustee’s name on Schedule 2, in an aggregate
principal amount equal to the amount of the secured loan made by
each such
Applicable Pass Through Trustee.
|
In
addition, the Owner shall have the option after the Closing Date to redeem
and
reissue Series B or Series C Equipment Notes and to issue from time to time
Additional Series Equipment Notes, subject to the terms of the Note Purchase
Agreement and the Intercreditor Agreement. If Series B, Series C or Additional
Series Equipment Notes are so reissued or issued after the Closing Date, the
Note Holder of such Equipment Notes
shall
be
entitled to execute a counterpart to this Agreement and become a party
hereto.
2.2 Closing
(a) The
Closing of the transactions contemplated hereby shall take place at the offices
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or at such other place as the parties shall agree.
(b) All
payments pursuant to this Section 2 shall be made in immediately available
funds
to such accounts set forth in Schedule 1 hereto.
SECTION
3. [Intentionally
omitted]
SECTION
4. CONDITIONS
PRECEDENT
4.1 Conditions
Precedent to the Obligations of the Pass Through Trustees
The
obligation of each Applicable Pass Through Trustee listed on Schedule 2 to
make
the secured loan described in Section 2.1(a) and to participate in the
transactions contemplated by this Agreement on the Closing Date is subject
to
the fulfillment, prior to or on the Closing Date, of the following conditions
precedent:
4.1.1 Equipment
Notes
The
Owner
shall have tendered the Equipment Notes to be issued to such Applicable Pass
Through Trustees to the Mortgagee for authentication and the Mortgagee shall
have authenticated such Equipment Notes to be issued to such Applicable Pass
Through Trustees and shall have tendered the Equipment Notes to the
Subordination Agent on behalf of such Pass Through Trustee, against receipt
of
the loan proceeds, in accordance with Section 2.1.
4.1.2 Delivery
of Documents
The
Subordination Agent on behalf of each such Applicable Pass Through Trustee
shall
have received executed counterparts or conformed copies of the following
documents:
(i)
this
Agreement;
(ii)
the
Trust Indenture;
(iii)
the
initial Trust Indenture Supplement;
(iv)
the
broker’s report and insurance certificates required by Section 4.06 of the
Trust Indenture;
(v)
the
Consent and Agreement and the Engine Consent and Agreement;
(vi)
the
Bills of Sale;
(vii)
(A) a copy of the Certificate of Incorporation and By-Laws of Owner and
resolutions of the board of directors of Owner and/or the executive committee
thereof, in each case certified as of the Closing Date, by the Secretary or
an
Assistant Secretary of Owner, duly authorizing the execution, delivery and
performance by Owner of the Operative Agreements to which it is party required
to be executed and delivered by Owner on or prior to the Closing Date in
accordance with the provisions hereof and thereof; and (B) an incumbency
certificate of Owner as to the person or persons authorized to execute and
deliver the Operative Agreements on behalf of Owner;
(viii)
an
Officer’s Certificate of Owner, dated as of the Closing Date, stating that its
representations and warranties set forth in this Agreement are true and correct
as of the Closing Date (or, to the extent that any such representation and
warranty expressly relates to an earlier date, true and correct as of such
earlier date);
(ix)
the
Financing Statements;
(x)
the
following opinions of counsel, in each case dated the Closing Date:
(A) an
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to Owner,
substantially in the form of Exhibit A;
(B) an
opinion of Owner’s Legal Department, substantially in the form of
Exhibit B;
(C) an
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special counsel to Mortgagee and to
the Applicable Pass Through Trustees, substantially in the form of
Exhibit C;
(D) an
opinion of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel in Oklahoma City, Oklahoma,
substantially in the form of Exhibit D; and
(xi)
a
copy of a current, valid Standard Certificate of Airworthiness for the Aircraft
duly issued by the FAA, together with a copy of a duly executed application
for
registration of the Aircraft with the FAA in the name of the Owner.
4.1.3 Perfected
Security Interest
On
the
Closing Date, after giving effect to the filing of the FAA Filed Documents,
the
Financing Statements and the registration of the International Interest (or
Prospective International Interest) of the Mortgagee in the Airframe and each
Engine with the International Registry, Mortgagee shall have received a duly
perfected first priority security interest in all of Owner’s right, title and
interest in the Aircraft, subject only to Permitted Liens.
4.1.4 Violation
of Law
No
change
shall have occurred after the date of this Agreement in any applicable Law
that
makes it a violation of Law for (a) Owner, any Applicable Pass Through
Trustee, Subordination Agent or Mortgagee to execute, deliver and perform the
Operative Agreements to which any of them is a party or (b) any Applicable
Pass Through Trustee to make the loan contemplated by Section 2.1, to acquire
an
Equipment Note or to realize the benefits of the security afforded by the Trust
Indenture.
4.1.5 Representations,
Warranties and Covenants
The
representations and warranties of each other party to this Agreement made,
in
each case, in this Agreement and in any other Operative Agreement to which
it is
a party, shall be true and accurate in all material respects as of the Closing
Date (unless any such representation and warranty shall have been made with
reference to a specified date, in which case such representation and warranty
shall be true and accurate as of such specified date) and each other party
to
this Agreement shall have performed and observed, in all material respects,
all
of its covenants, obligations and agreements in this Agreement and in any other
Operative Agreement to which it is a party to be observed or performed by it
as
of the Closing Date.
4.1.6 No
Event of Default
On
the
Closing Date, no event shall have occurred and be continuing, or would result
from the mortgage of the Aircraft, which constitutes a Default or an Event
of
Default.
4.1.7 No
Event of Loss
No
Event
of Loss with respect to the Airframe or any Engine shall have occurred and
no
circumstance, condition, act or event that, with the giving of notice or lapse
of time or both, would give rise to or constitute an Event of Loss with respect
to the Airframe or any Engine shall have occurred.
4.1.8 Title
Owner
shall have good title (subject to filing and recordation of the FAA ▇▇▇▇ of
Sale
with the FAA) to the Aircraft, free and clear of all Liens, except Permitted
Liens.
4.1.9 Certification
The
Aircraft shall have been duly certificated by the FAA as to type and
airworthiness in accordance with the terms of the Purchase
Agreement.
4.1.10 Section
1110
Mortgagee
shall be entitled to the benefits of Section 1110 (as currently in effect)
with respect to the right to take possession of the Airframe and Engines and
to
enforce any of its other rights or remedies as provided in the Trust Indenture
in the event of a case under Chapter 11 of the Bankruptcy Code in which
Owner is a debtor.
4.1.11 Filing
On
the
Closing Date (a) the FAA Filed Documents shall have been duly filed for
recordation (or shall be in the process of being so duly filed for recordation)
with the FAA in accordance with the Act, (b) the sale of the Airframe and
Engines to the Owner and the International Interest (or Prospective
International Interest) of the Mortgagee therein granted (or to be granted)
under the Trust Indenture shall have been registered with the International
Registry and there shall exist no registered International Interest with respect
to the Airframe or either Engine on the International Registry and (c) each
Financing Statement shall have been duly filed (or shall be in
the
process of being so duly filed) in the appropriate jurisdiction.
4.1.12 No
Proceedings
No
action
or proceeding shall have been instituted, nor shall any action be threatened
in
writing, before any Government Entity, nor shall any order, judgment or decree
have been issued or proposed to be issued by any Government Entity, to set
aside, restrain, enjoin or prevent the completion and consummation of this
Agreement or any other Operative Agreement or the transactions contemplated
hereby or thereby.
4.1.13 Governmental
Action
All
appropriate action required to have been taken prior to the Closing Date by
the
FAA, or any governmental or political agency, subdivision or instrumentality
of
the United States, in connection with the transactions contemplated by this
Agreement shall have been taken, and all orders, permits, waivers,
authorizations, exemptions and approvals of such entities required to be in
effect on the Closing Date in connection with the transactions contemplated
by
this Agreement shall have been issued.
4.1.14 Note
Purchase Agreement
The
conditions precedent to the obligations of the Applicable Pass Through Trustees
and the other requirements relating to the Aircraft and the Equipment Notes
set
forth in the Note Purchase Agreement shall have been satisfied.
4.2 Conditions
Precedent to Obligations of Mortgagee
The
obligation of Mortgagee to authenticate the Equipment Notes on the Closing
Date
is subject to the satisfaction or waiver by Mortgagee, on or prior to the
Closing Date, of the conditions precedent set forth below in this Section
4.2.
4.2.1 Documents
Executed
originals of the agreements, instruments, certificates or documents described
in
Section 4.1.2 shall have been received by Mortgagee, except as specifically
provided therein, unless the failure to receive any such agreement, instrument,
certificate or document is the result of any action or inaction by
Mortgagee.
4.2.2 Other
Conditions Precedent
Each
of
the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6 and 4.1.10 shall
have been satisfied unless the failure of any such condition to be satisfied
is
the result of any action or inaction by Mortgagee.
4.3 Conditions
Precedent to Obligations of Owner
The
obligation of Owner to participate in the transaction contemplated hereby on
the
Closing Date is subject to the satisfaction or waiver by Owner, on or prior
to
the Closing Date, of the conditions precedent set forth below in this
Section 4.3.
4.3.1 Documents
Executed
originals of the agreements, instruments, certificates or documents described
in
Section 4.1.2 shall have been received by Owner, except as specifically
provided therein, and shall be satisfactory to Owner, unless the failure to
receive any such agreement, instrument, certificate or document is the result
of
any action or inaction by Owner. In addition, the Owner shall have received
the
following:
(i)
(A) an incumbency certificate of WTC as to the person or persons authorized
to execute and deliver the Operative Agreements on behalf of WTC and (B) a
copy of the Certificate of Incorporation and By-Laws and general authorizing
resolution of the board of directors (or executive committee) or other
satisfactory evidence of authorization of WTC, certified as of the Closing
Date
by the Secretary or Assistant or Attesting Secretary of WTC, which authorize
the
execution, delivery and performance by WTC of the Operative Agreements to which
it is a party; and
(ii)
an
Officer’s Certificate of WTC, dated as of the Closing Date, stating that its
representations and warranties in its individual capacity or as Mortgagee,
an
Applicable Pass Through Trustee or Subordination Agent, as the case may be,
set
forth in this Agreement are true and correct as of the Closing Date (or, to
the
extent that any such representation and warranty expressly relates to an earlier
date, true and correct as of such earlier date);
4.3.2 Other
Conditions Precedent
Each
of
the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8,
4.1.9, 4.1.10, 4.1.11, 4.1.12 and 4.1.13 shall have been satisfied or waived
by
Owner, unless the failure of any such condition to be satisfied is the result
of
any action or inaction by Owner.
4.4 Post-Registration
Opinion
Promptly
upon the registration of the Aircraft and the recordation of the FAA Filed
Documents pursuant to the Act, Owner will cause ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇,
special counsel in Oklahoma City, Oklahoma, to deliver to Owner, each Pass
Through Trustee and Mortgagee a favorable opinion or opinions addressed to
each
of them with respect to such registration and recordation.
SECTION
5. REPRESENTATIONS
AND WARRANTIES
5.1 Owner’s
Representations and Warranties
Owner
represents and warrants to each Pass Through Trustee, Subordination Agent and
Mortgagee that:
5.1.1 Organization;
Qualification
Owner
is
a corporation duly incorporated, validly existing and in good standing under
the
Laws of the State of Delaware and has the corporate power and authority to
conduct the business in which it is currently engaged and to own or hold under
lease its properties and to enter into and perform its obligations under the
Operative Agreements to which it is party. Owner is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in
which
the nature and extent of the business conducted by it, or the ownership of
its
properties, requires such qualification, except where the failure to be so
qualified would not give rise to a Material Adverse Change to
Owner.
5.1.2 Corporate
Authorization
Owner
has
taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required
by
its Certificate of Incorporation or By-Laws) to authorize the execution and
delivery of each of the Operative Agreements to
which
it
is party, and the performance of its obligations thereunder.
5.1.3 No
Violation
The
execution and delivery by Owner of the Operative Agreements to which it is
party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby, do not and will not (a) violate any provision of the Certificate
of Incorporation or By-Laws of Owner, (b) violate any Law applicable to or
binding on Owner or (c) violate or constitute any default under (other than
any violation or default that would not result in a Material Adverse Change
to
Owner), or result in the creation of any Lien (other than as permitted under
the
Trust Indenture) upon the Aircraft under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, loan or other
material agreement, instrument or document to which Owner is a party or by
which
Owner or any of its properties is bound.
5.1.4 Approvals
The
execution and delivery by Owner of the Operative Agreements to which Owner
is a
party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby do not and will not require the consent or approval of, or the giving
of
notice to, or the registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (a) any trustee or
other holder of any Debt of Owner and (b) any Government Entity, other than
the filing of (x) the FAA Filed Documents and the Financing Statements (and
continuation statements periodically), (y) the registration of the International
Interest (or Prospective International Interest) in, and the sale to the Owner
of, the Airframe and Engines with the International Registry and
(z) filings, recordings, notices or other ministerial actions pursuant to
any routine recording, contractual or regulatory requirements applicable to
it.
5.1.5 Valid
and Binding Agreements
The
Operative Agreements to which Owner is a party have been duly authorized,
executed and delivered by Owner and, assuming the due authorization, execution
and delivery thereof by the other party or parties thereto, constitute the
legal, valid and binding obligations of Owner and are enforceable
against
Owner in accordance with the respective terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar Laws affecting the rights of
creditors generally and general principles of equity, whether considered in
a
proceeding at law or in equity.
5.1.6 Registration
and Recordation
Except
for (a) the registration of the Aircraft with the FAA pursuant to the Act
in the name of Owner, (b) the filing with the FAA of the AC Forms 8050-135
with respect to the sale of the Airframe and Engines to Owner and the
International Interests (or Prospective International Interests) granted under
the Trust Indenture thereon and the filing with the FAA for recordation (and
recordation) of the other FAA Filed Documents, (c) the registration of the
International Interest (or Prospective International Interest) in, and the
sale
to the Owner of, the Airframe and Engines on with the International Registry,
(d) the filing of the Financing Statements (and continuation statements
relating thereto at periodic intervals), and (e) the affixation of the
nameplates referred to in Section 4.02(f) of the Trust Indenture, no
further action, including any filing or recording of any document (including
any
financing statement in respect thereof under Article 9 of the UCC) is necessary
in order to establish and perfect Mortgagee’s security interest in the Aircraft
as against Owner and any other Person, in each case, in any applicable
jurisdictions in the United States.
5.1.7 Owner’s
Location
The
Owner’s location (as such term is used in Section 9-307 of the UCC) is
Delaware. The full and correct legal name and mailing address of Owner are
correctly set forth in Schedule 1 hereto in the column “Address for
Notices”.
5.1.8 No
Event of Loss
No
Event
of Loss has occurred with respect to the Airframe or any Engine, and, to the
Actual Knowledge of Owner, no circumstance, condition, act or event has occurred
that, with the giving of notice or lapse of time or both gives rise to or
constitutes an Event of Loss with respect to the Airframe or any
Engine.
5.1.9 Compliance
With Laws
(a) Owner
is
a Citizen of the United States and a U.S. Air Carrier.
(b) Owner
holds all licenses, permits and franchises from the appropriate Government
Entities necessary to authorize Owner to lawfully engage in air transportation
and to carry on scheduled commercial passenger service as currently conducted,
except where the failure to so hold any such license, permit or franchise would
not give rise to a Material Adverse Change to Owner.
(c) Owner
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.
5.1.10 Securities
Laws
Neither
Owner nor any person authorized to act on its behalf has directly or indirectly
offered any beneficial interest or Security relating to the ownership of the
Aircraft, or any of the Equipment Notes or any other interest in or security
under the Trust Indenture, for sale to, or solicited any offer to acquire any
such interest or security from, or has sold any such interest or security to,
any person in violation of the Securities Act.
5.1.11 Broker’s
Fees
No
Person
acting on behalf of Owner is or will be entitled to any broker’s fee, commission
or finder’s fee in connection with the Transactions, other than the fees and
expenses payable by Owner in connection with the sale of the Pass Through
Certificates.
5.1.12 Section
1110
Mortgagee
is entitled to the benefits of Section 1110 (as currently in effect) with
respect to the right to take possession of the Airframe and Engines and to
enforce any of its other rights or remedies as provided in the Trust Indenture
in the event of a case under Chapter 11 of the Bankruptcy Code in which Owner
is
a debtor.
5.1.13 Cape
Town
The
Owner
is a Transactional User Entity; is “situated”, for the purposes of the Cape Town
Treaty, in the United States; and has the power to “dispose” (as such term is
used in the Cape Town Treaty) of the Airframe and each Engine. The Bills of
Sale
for the Airframe and Engines constitutes a “contract of sale” (as defined in the
Cape Town Treaty), and the Trust Indenture, as supplemented by the Trust
Indenture Supplement in which such Airframe and Engines are listed, creates
an
International Interest in such Airframe and Engines. The Airframe and each
Engine are “aircraft objects” (as defined in the Cape Town Treaty); and the
United States is a Contracting State under the Cape Town Treaty.
5.2 WTC’s
Representations and Warranties
WTC
represents and warrants (with respect to Section 5.2.10, solely in its
capacity as Subordination Agent) to Owner that:
5.2.1 Organization,
Etc.
WTC
is a
Delaware banking corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware, holding a valid certificate
to
do business as a Delaware banking corporation with banking authority to execute
and deliver, and perform its obligations under, the Applicable Pass Through
Trustee Agreements and the Operative Agreements to which it is a
party.
5.2.2 Corporate
Authorization
WTC
has
taken, or caused to be taken, all necessary corporate action (including, without
limitation, the obtaining of any consent or approval of stockholders required
by
Law or by its Certificate of Incorporation or By-Laws) to authorize the
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party
and the performance of its obligations thereunder.
5.2.3 No
Violation
The
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party,
the performance by WTC, in its individual capacity or as
Mortgagee,
a Pass Through Trustee or Subordination Agent, as the case may be, of its
obligations thereunder and the consummation on the Closing Date of the
transactions contemplated thereby, do not and will not (a) violate any
provision of the Certificate of Incorporation or By-Laws of WTC,
(b) violate any Law applicable to or binding on WTC, in its individual
capacity or (except in the case of any Law relating to any Plan) as Mortgagee,
a
Pass Through Trustee or Subordination Agent, or (c) violate or constitute
any default under (other than any violation or default that would not result
in
a Material Adverse Change to WTC, in its individual capacity or Mortgagee,
a
Pass Through Trustee or Subordination Agent), or result in the creation of
any
Lien (other than the Lien of the Trust Indenture) upon any property of WTC,
in
its individual capacity or as Mortgagee, a Pass Through Trustee or Subordination
Agent, or any of WTC’s subsidiaries under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, loan or other
agreement, instrument or document to which WTC, in its individual capacity
or as
Mortgagee, a Pass Through Trustee or Subordination Agent, is a party or by
which
WTC, in its individual capacity or as Mortgagee, a Pass Through Trustee or
Subordination Agent, or any of their respective properties is
bound.
5.2.4 Approvals
The
execution and delivery by WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, of the Pass
Through Trustee Agreements and the Operative Agreements to which it is a party,
the performance by WTC, in its individual capacity or as Mortgagee, a Pass
Through Trustee or Subordination Agent, as the case may be, of its obligations
thereunder and the consummation on the Closing Date by WTC, in its individual
capacity or as Mortgagee, a Pass Through Trustee or Subordination Agent, as
the
case may be, of the transactions contemplated thereby do not and will not
require the consent, approval or authorization of, or the giving of notice
to,
or the registration with, or the recording or filing of any documents with,
or
the taking of any other action in respect of, (a) any trustee or other
holder of any Debt of WTC or (b) any Government Entity, other than the
filing of the FAA Filed Documents and the Financing Statements.
5.2.5 Valid
and Binding Agreements
The
Pass
Through Trustee Agreements and the Operative Agreements to which it is a party
have been duly authorized, executed and delivered by WTC and, assuming the
due
authorization,
execution and delivery by the other party or parties thereto, constitute the
legal, valid and binding obligations of WTC, in its individual capacity or
as
Mortgagee, a Pass Through Trustee or Subordination Agent, as the case may be,
and are enforceable against WTC, in its individual capacity or as Mortgagee,
a
Pass Through Trustee or Subordination Agent, as the case may be, in accordance
with the respective terms thereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar Laws affecting the rights of creditors generally and general principles
of equity, whether considered in a proceeding at law or in equity.
5.2.6 Citizenship
WTC
is a
Citizen of the United States.
5.2.7 No
Liens
On
the
Closing Date, there are no Liens attributable to WTC in respect of all or any
part of the Collateral.
5.2.8 Litigation
There
are
no pending or, to the Actual Knowledge of WTC, threatened actions or proceedings
against WTC, in its individual capacity or as Mortgagee, a Pass Through Trustee
or Subordination Agent, before any court, administrative agency or tribunal
which, if determined adversely to WTC, in its individual capacity or as
Mortgagee, a Pass Through Trustee or Subordination Agent, as the case may be,
would materially adversely affect the ability of WTC, in its individual capacity
or as Mortgagee, a Pass Through Trustee or Subordination Agent, as the case
may
be, to perform its obligations under any of the Mortgagee Agreements, the Pass
Through Trustee Agreements or the Subordination Agent Agreements.
5.2.9 Securities
Laws
Neither
WTC nor any person authorized to act on its behalf has directly or indirectly
offered any beneficial interest or Security relating to the ownership of the
Aircraft or any interest in the Collateral or any of the Equipment Notes or
any
other interest in or security under the Collateral for sale to, or solicited
any
offer to acquire any such interest or security from, or has sold any such
interest or security to, any Person other than the Subordination Agent and
the
Pass Through
Trustees,
except for the offering and sale of the Pass Through Certificates.
5.2.10 Investment
The
Equipment Notes to be acquired by the Subordination Agent are being acquired
by
it for the account of the Applicable Pass Through Trustees, for investment
and
not with a view to any resale or distribution thereof, except that, subject
to
the restrictions on transfer set forth in Section 9, the disposition by it
of its Equipment Notes shall at all times be within its control.
5.2.11 Taxes
There
are
no Taxes payable by any Applicable Pass Through Trustee or WTC, as the case
may
be, imposed by the State of Delaware or any political subdivision or taxing
authority thereof in connection with the execution, delivery and performance
by
such Pass Through Trustee or WTC, as the case may be, of this Agreement or
any
of the Pass Through Trustee Agreements (other than franchise or other taxes
based on or measured by any fees or compensation received by any such Pass
Through Trustee or WTC, as the case may be, for services rendered in connection
with the transactions contemplated by any of the Pass Through Trust Agreements),
and there are no Taxes payable by any Applicable Pass Through Trustee or WTC,
as
the case may be, imposed by the State of Delaware or any political subdivision
thereof in connection with the acquisition, possession or ownership by any
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 any
such Pass Through Trustee or WTC, as the case may be, for services rendered
in
connection with the transactions contemplated by any of the Pass Through Trust
Agreements), and, assuming that the trusts created by the Pass Through Trust
Agreements will not be taxable as corporations, but, rather, each will be
characterized as a grantor trust under subpart E, Part I of Subchapter J of
the
Code or as a partnership under Subchapter K of the Code, such trusts will not
be
subject to any Taxes imposed by the State of Delaware or any political
subdivision thereof;
5.2.12 Broker’s
Fees
No
Person
acting on behalf of WTC, in its individual capacity or as Mortgagee, any
Applicable Pass Through Trustee or
Subordination
Agent, is or will be entitled to any broker’s fee, commission or finder’s fee in
connection with the Transactions.
SECTION
6. COVENANTS,
UNDERTAKINGS AND AGREEMENTS
6.1 Covenants
of Owner
Owner
covenants and agrees, at its own cost and expense, with Note Holder and
Mortgagee as follows:
6.1.1 Corporate
Existence; U.S. Air Carrier
Owner
shall at all times maintain its corporate existence, except as permitted by
Section 4.07 of the Trust Indenture, and shall at all times remain a U.S.
Air Carrier.
6.1.2 Notice
of Change of Location
Owner
will give Mortgagee timely written notice (but in any event within 30 days
prior
to the expiration of the period of time specified under applicable Law to
prevent lapse of perfection) of any change in its location (as such term is
used
in Section 9-307 of the UCC) or legal name and will promptly take any
action required by Section 6.1.3(c) as a result of such
relocation.
6.1.3 Certain
Assurances
(a) Owner
shall duly execute, acknowledge and deliver, or shall cause to be executed,
acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further acts
and things, in any case, as Mortgagee shall reasonably request for accomplishing
the purposes of this Agreement and the other Operative Agreements, provided that
any
instrument or other document so executed by Owner will not expand any
obligations or limit any rights of Owner in respect of the transactions
contemplated by any Operative Agreement.
(b) Owner
shall promptly take such action with respect to the recording, filing,
re-recording and refiling of the Trust Indenture and any supplements thereto,
including, without limitation, the initial Trust Indenture Supplement, as shall
be necessary to continue the perfection and priority of the Lien created by
the
Trust Indenture.
(c) Owner,
at
its sole cost and expense, will cause the FAA Filed Documents, the Financing
Statements and all
continuation
statements (and any amendments necessitated by any combination, consolidation
or
merger of the Owner, or any relocation of its chief executive office) in respect
of the Financing Statements to be prepared and, subject only to the execution
and delivery thereof by Mortgagee, duly and timely filed and recorded, or filed
for recordation, to the extent permitted under the Act (with respect to the
FAA
Filed Documents) or the UCC or similar law of any other applicable jurisdiction
(with respect to such other documents). Mortgagee, and not Owner, shall be
responsible for any amendments to the foregoing documents and filings,
recordings and registrations thereof necessitated in any such case by any
combination, consolidation or merger of Mortgagee or change in the Mortgagee’s
name, status, jurisdiction of organization or address.
(d) If
the
Aircraft has been registered in a country other than the United States pursuant
to Section 4.02(e) of the Trust Indenture, Owner will furnish to Mortgagee
annually after such registration, commencing with the calendar year after such
registration is effected, an opinion of special counsel reasonably satisfactory
to Mortgagee stating that, in the opinion of such counsel, either that
(i) such action has been taken with respect to the recording, filing,
rerecording and refiling of the Operative Agreements and any supplements and
amendments thereto as is necessary to establish, perfect and protect the Lien
created by the Trust Indenture, reciting the details of such actions, or
(ii) no such action is necessary to maintain the perfection of such
Lien.
6.1.4 Securities
Laws
Neither
Owner nor any person authorized to act on its behalf will directly or indirectly
offer any beneficial interest or Security relating to the ownership of the
Aircraft or any interest in any of the Equipment Notes or any other interest
in
or security under the Trust Indenture, for sale to, or solicit any offer to
acquire any such interest or security from, or sell any such interest or
security to, any person in violation of the Securities Act or applicable state
or foreign securities Laws.
6.1.5. Notice
of Lease
Owner
shall give to Standard & Poor’s Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., a copy of any notice regarding a lease of the Aircraft required
to be given to the Mortgagee pursuant to clause (w) of the first sentence
of the penultimate paragraph of Section 4.02(b) of the Mortgage, at the
time
such
notice is given to Mortgagee, if at such time Standard & Poor’s is then
rating the Pass Through Certificates.
6.2 Covenants
of WTC
WTC
in
its individual capacity or as Mortgagee, each Applicable Pass Through Trustee
or
Subordination Agent, as the case may be, covenants and agrees with Owner as
follows:
6.2.1 Liens
WTC
(a)
will not directly or indirectly create, incur, assume or suffer to exist any
Lien attributable to it on or with respect to all or any part of the Collateral
or the Aircraft, (b) will, at its own cost and expense, promptly take such
action as may be necessary to discharge any Lien attributable to WTC on all
or
any part of the Collateral or the Aircraft and (c) will personally hold harmless
and indemnify Owner, each Note Holder, each of their respective Affiliates,
successors and permitted assigns, and the Collateral from and against (i) any
and all Expenses, (ii) any reduction in the amount payable out of the
Collateral, and (iii) any interference with the possession, operation or other
use of all or any part of the Aircraft, imposed on, incurred by or asserted
against any of the foregoing as a consequence of any such Lien.
6.2.2 Securities
Act
WTC
in
its individual capacity or as Mortgagee, an Applicable Pass Through Trustee
or
Subordination Agent, will not offer any beneficial interest or Security relating
to the ownership of the Aircraft or any interest in the Collateral, or any
of
the Equipment Notes or any other interest in or security under the Trust
Indenture for sale to, or solicit any offer to acquire any such interest or
security from, or sell any such interest or security to, any Person in violation
of the Securities Act or applicable state or foreign securities Laws, provided
that the foregoing shall not be deemed to impose on WTC any responsibility
with
respect to any such offer, sale or solicitation by any other party
hereto.
6.2.3 Performance
of Agreements
WTC,
in
its individual capacity and as Mortgagee, an Applicable Pass Through Trustee
or
Subordination Agent, as the case may be, shall perform its obligations under
the
Pass Through Trustee Agreements and the Operative Agreements in accordance
with
the terms thereof.
6.2.4 Withholding
Taxes
WTC
shall
indemnify (on an after-tax basis) and hold harmless Owner against any United
States withholding taxes (and related interest, penalties and additions to
tax)
as a result of the failure by WTC to withhold on payments to any Note Holder
if
such Note Holder failed to provide to Mortgagee necessary certificates or forms
to substantiate the right to exemption from such withholding tax.
6.3 Covenants
of Note Holders
Each
Note
Holder (including Subordination Agent) as to itself only covenants and agrees
with Owner and Mortgagee as follows:
6.3.1 Withholding
Taxes
Such
Note
Holder (if it is a Non-U.S. Person) agrees to indemnify (on an after-tax basis)
and hold harmless Owner and Mortgagee against any United States withholding
taxes (and related interest, penalties and additions to tax) as a result of
the
inaccuracy or invalidity of any certificate or form provided by such Note Holder
to Mortgagee in connection with such withholding taxes. Any amount payable
hereunder shall be paid within 30 days after receipt by a Note Holder of a
written demand therefor.
6.3.2 Transfer;
Compliance
(a) Such
Note
Holder will (i) not transfer any Equipment Note or interest therein in violation
of the Securities Act or applicable state or foreign securities Law;
provided,
that
the foregoing provisions of this section shall not be deemed to impose on such
Note Holder any responsibility with respect to any such offer, sale or
solicitation by any other party hereto, and (ii) perform and comply with the
obligations specified to be imposed on it (as a Note Holder) under each of
the
Trust Indenture and the form of Equipment Note set forth in the Trust
Indenture.
(b) Except
for the transfer of the interests of each Applicable Pass Through Trustee in
the
Equipment Notes to the trustee of the Related Trust (as defined in each
Applicable Pass Through Trust Agreement) in accordance with the related
Applicable Pass Through Trust Agreement, each Note Holder will not sell, assign,
convey, exchange or otherwise transfer any Equipment Note or any interest in,
or
represented by, any
Equipment
Note (it being understood that this provision is not applicable to the Pass
Through Certificates) unless the proposed transferee thereof first provides
Owner with both of the following:
(i)
a
written representation and covenant that either (a) no portion of the funds
it
uses to purchase, acquire and hold such Equipment Note or interest directly
or
indirectly constitutes, or may be deemed under the Code or ERISA or any rulings,
regulations or court decisions thereunder to constitute, the assets of any
Plan
or (b) the transfer, and subsequent holding, of such Equipment Note or interest
shall not involve or give rise to a transaction that constitutes a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975(c)(1)
of
the Code involving Owner, a Pass Through Trustee, the Subordination Agent or
the
proposed transferee (other than a transaction that is exempted from the
prohibitions of such sections by applicable provisions of ERISA or the Code
or
administrative exemptions or regulations issued thereunder); and
(ii)
a
written covenant that it will not transfer any Equipment Note or any interest
in, or represented by, any Equipment Note unless the subsequent transferee
also
makes the representation described in clause (i) above and agrees to comply
with
this clause (ii).
6.4 Agreements
6.4.1 Quiet
Enjoyment
Each
Applicable Pass Through Trustee, Subordination Agent, each Note Holder and
Mortgagee agrees as to itself with Owner that, so long as no Event of Default
shall have occurred and be continuing, such Person shall not (and shall not
permit any Affiliate or other Person claiming by, through or under it to)
interfere with Owner’s rights in accordance with the Indenture to the quiet
enjoyment, possession and use of the Aircraft.
6.4.2 Consents
Each
Pass
Through Trustee, Subordination Agent and Mortgagee covenants and agrees, for
the
benefit of Owner, that it shall not unreasonably withhold its consent to any
consent or approval requested of it under the terms of any of the Operative
Agreements which by its terms is not to be unreasonably withheld.
6.4.3 Insurance
Each
Pass
Through Trustee, Subordination Agent, Mortgagee and each Note Holder agrees
not
to obtain or maintain insurance for its own account as permitted by
Section 4.06 of the Trust Indenture if such insurance would limit or
otherwise adversely affect the coverage of any insurance required to be obtained
or maintained by Owner pursuant to Section 4.06 of the Trust
Indenture.
6.4.4 Extent
of Interest of Note Holders
A
Note
Holder shall not, as such, have any further interest in, or other right with
respect to, the Collateral when and if the principal and Make-Whole Amount,
if
any, of and interest on the Equipment Note held by such Holder, and all other
sums, then due and payable to such Holder hereunder and under any other
Operative Agreement, shall have been paid in full. The preceding sentence shall
not limit the rights of the Related Note Holders with respect to Related Secured
Obligations under the Trust Indenture, provided
that a
Related Note Holder shall not, as such, have any further interest in, or other
right with respect to, the Collateral when and if the Related Secured
Obligations attributable to the Related Equipment Note held by such Holder
shall
have been paid in full.
6.4.5 Foreign
Registration
Each
Note
Holder and Mortgagee hereby agree, for the benefit of Owner but subject to
the
provisions of Section 4.02(b) of the Trust Indenture:
(a) that
Owner shall be entitled to register the Aircraft or cause the Aircraft to be
registered in a country other than the United States subject to compliance
with
the following:
(i)
each
of the following requirements is satisfied:
|
(A)
|
no
Special Default or Event of Default shall have occurred and be continuing
at the time of such registration;
|
|
(B)
|
such
proposed change of registration is made in connection with a Permitted
Lease to a Permitted Air Carrier;
and
|
|
(C)
|
such
country is a country with which the United States then maintains
normal
diplomatic relations
|
or,
if
Taiwan, the United States then maintains diplomatic relations at least as good
as those in effect on the Closing Date;
(ii)
the
Mortgagee shall have received an opinion of counsel (subject to customary
exceptions) reasonably satisfactory to the Mortgagee addressed to Mortgagee
as
to the effect that:
(A) such
country would recognize the Owner’s ownership interest in the
Aircraft;
(B) after
giving effect to such change in registration, the Lien of the Trust Indenture
on
the Owner’s right, title and interest in and to the Aircraft shall continue as a
valid and duly perfected first priority security interest and International
Interest and all filing, recording or other action necessary to protect the
same
shall have been accomplished (or, if such opinion cannot be given at the time
of
such proposed change in registration because such change in registration is
not
yet effective, (1) the opinion shall detail what filing, recording or other
action is necessary and (2) the Mortgagee shall have received a certificate
from Owner that all possible preparations to accomplish such filing, recording
and other action shall have been done, and such filing, recording and other
action shall be accomplished and a supplemental opinion to that effect shall
be
delivered to the Mortgagee on or prior to the effective date of such change
in
registration);
(C) unless
Owner or the Permitted Air Carrier shall have agreed to provide insurance
covering the risk of requisition of use of the Aircraft by the government of
such country (so long as the Aircraft is registered under the laws of such
country), the laws of such country require fair compensation by the government
of such country payable in currency freely convertible into Dollars and freely
removable from such country (without license or permit, unless Owner prior
to
such proposed reregistration has obtained such license or permit) for the taking
or requisition by such government of such use; and
(D) it
is not
necessary, solely as a consequence of such change in registration and without
giving
effect
to
any other activity of the Mortgagee (or any Affiliate of the Mortgagee), for
the
Mortgagee to qualify to do business in such jurisdiction as a result of such
reregistration in order to exercise any rights or remedies with respect to
the
Aircraft.
(b) In
addition, as a condition precedent to any change in registration Owner shall
have given to Mortgagee assurances reasonably satisfactory to
Mortgagee:
(i) to
the
effect that the provisions of Section 4.06 of the Trust Indenture have been
complied with after giving effect to such change of registration;
(ii) of
the
payment by Owner of all reasonable out-of-pocket expenses of each Note Holder
and Mortgagee in connection with such change of registry, including, without
limitation (1) the reasonable fees and disbursements of counsel to
Mortgagee, (2) any filing or recording fees, Taxes or similar payments
incurred in connection with the change of registration of the Aircraft and
the
creation and perfection of the security interest therein in favor of Mortgagee
for the benefit of Note Holders, and (3) all costs and expenses incurred in
connection with any filings necessary to continue in the United States the
perfection of the security interest in the Aircraft in favor of Mortgagee for
the benefit of Note Holders; and
(iii) to
the
effect that the tax and other indemnities in favor of each person named as
an
indemnitee under any other Operative Agreement afford each such person
substantially the same protection as provided prior to such change of
registration (or Owner shall have agreed upon additional indemnities that,
together with such original indemnities, in the reasonable judgment of
Mortgagee, afford such protection).
6.4.6 Interest
in Certain Engines
Each
Note
Holder and Mortgagee agree, for the benefit of each of the lessor, conditional
seller, mortgagee or secured party of any airframe or engine leased to, or
purchased by, Owner or any Permitted Lessee subject to a lease, conditional
sale, trust indenture or other security agreement that it ▇▇▇▇
not
acquire or claim, as against such lessor, conditional seller, mortgagee or
secured party, any right, title or interest in any engine as the result of
such
engine being installed on the Airframe at any time while such engine is subject
to such lease, conditional sale, trust indenture or other security agreement
and
owned by such lessor or conditional seller or subject to a trust indenture
or
security interest in favor of such mortgagee or secured party.
SECTION
7. CONFIDENTIALITY
Owner,
Note Holders and Mortgagee shall keep the Participation Agreement and Annex
B to
the Trust Indenture confidential and shall not disclose, or cause to be
disclosed, the same to any Person, except (A) to prospective and permitted
transferees of Owner’s, a Note Holder’s, the Liquidity Provider’s, Mortgagee’s
or other Indenture Indemnitee’s interest or their respective counsel or special
counsel, independent insurance brokers, auditors, or other agents who agree
to
hold such information confidential, (B) to Owner’s, a Note Holder’s, the
Liquidity Provider’s, a Pass Through Trustee’s, Mortgagee’s or other Indenture
Indemnitee’s counsel or special counsel, independent insurance brokers,
auditors, or other agents, Affiliates or investors who agree to hold such
information confidential, (C) as may be required by any statute, court or
administrative order or decree, legal process or governmental ruling or
regulation, including those of any applicable insurance regulatory bodies
(including, without limitation, the National Association of Insurance
Commissioners), federal or state banking examiners, Internal Revenue Service
auditors or any stock exchange, (D) with respect to a Note Holder or any Pass
Through Trustee, to a nationally recognized rating agency for the purpose of
obtaining a rating on the Equipment Notes or the Pass Through Certificates
or to
support an NAIC rating for the Equipment Notes or (E) such other Persons as
are reasonably deemed necessary by the disclosing party in order to protect
the
interests of such party or for the purposes of enforcing such documents by
such
party; provided,
that
any and all disclosures permitted by clauses (C), (D), or (E) above shall
be made only to the extent necessary to meet the specific requirements or needs
of the Persons making such disclosures.
SECTION
8. INDEMNIFICATION
AND EXPENSES
8.1 General
Indemnity
8.1.1 Indemnity
Whether
or not any of the transactions contemplated hereby are consummated, Owner shall
indemnify, protect, defend and hold harmless each Indemnitee from, against
and
in respect of, and shall pay on a net after-tax basis, any and all Expenses
of
any kind or nature whatsoever that may be imposed on, incurred by or asserted
against any Indemnitee, relating to, resulting from, or arising out of or in
connection with, any one or more of the following:
(a) The
Operative Agreements, the Pass Through Agreements, or the enforcement of any
of
the terms of any of the Operative Agreements or the Pass Through
Agreements;
(b) The
Aircraft, the Airframe, any Engine or any Part, including, without limitation,
with respect thereto, (i) the manufacture, design, purchase, acceptance,
nonacceptance or rejection, ownership, registration, reregistration,
deregistration, delivery, nondelivery, lease, sublease, assignment, possession,
use or non-use, operation, maintenance, testing, repair, overhaul, condition,
alteration, modification, addition, improvement, storage, airworthiness,
replacement, repair, sale, substitution, return, abandonment, redelivery or
other disposition of the Aircraft, any Engine or any Part, (ii) any claim or
penalty arising out of violations of applicable Laws by Owner (or any Permitted
Lessee), (iii) tort liability, whether or not arising out of the negligence
of
any Indemnitee (whether active, passive or imputed), (iv) death or property
damage of passengers, shippers or others, (v) environmental control, noise
or
pollution and (vi) any Liens in respect of the Aircraft, any Engine or any
Part;
(c) The
offer, sale, or delivery of any Equipment Notes, Pass Through Certificates
or
any interest therein or represented thereby; and
(d) Any
breach of or failure to perform or observe, or any other noncompliance with,
any
covenant or agreement or other obligation to be performed by Owner under any
Operative Agreement to which it is party or any Pass Through Agreement or the
falsity of any representation or warranty of Owner in any Operative Agreement
to
which it is party or any Pass Through Agreement.
8.1.2 Exceptions
Notwithstanding
anything contained in Section 8.1.1, Owner shall not be required to
indemnify, protect, defend and hold harmless any Indemnitee pursuant to
Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For
any
Taxes or a loss of Tax benefit, whether or not Owner is required to indemnify
therefor pursuant to Section 8.3;
(b) Except
to
the extent attributable to acts or events occurring prior thereto, acts or
events (other than acts or events related to the performance by Owner of its
obligations pursuant to the terms of the Operative Agreements) that occur after
the Trust Indenture is required to be terminated in accordance with Section
11.01 of the Trust Indenture; provided,
that
nothing in this clause (b) shall be deemed to exclude or limit any claim that
any Indemnitee may have under applicable Law by reason of an Event of Default
or
for damages from Owner for breach of Owner’s covenants contained in the
Operative Agreements or to release Owner from any of its obligations under
the
Operative Agreements that expressly provide for performance after termination
of
the Trust Indenture;
(c) To
the
extent attributable to any Transfer (voluntary or involuntary) by or on behalf
of such Indemnitee of any Equipment Note or interest therein, except for
out-of-pocket costs and expenses incurred as a result of any such Transfer
pursuant to the exercise of remedies under any Operative Agreement;
(d) [Intentionally
Omitted]
(e) To
the
extent attributable to the gross negligence or willful misconduct of such
Indemnitee or any related Indemnitee (as defined below) (other than gross
negligence or willful misconduct imputed to such person by reason of its
interest in the Aircraft or any Operative Agreement);
(f) [Intentionally
Omitted]
(g) To
the
extent attributable to the incorrectness or breach of any representation or
warranty of such Indemnitee or any related Indemnitee contained in or made
pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To
the
extent attributable to the failure by such Indemnitee or any related Indemnitee
to perform or observe any
agreement,
covenant or condition on its part to be performed or observed in any Operative
Agreement or any Pass Through Agreement;
(i) To
the
extent attributable to the offer or sale by such Indemnitee or any related
Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass
Through Certificates, or any similar interest, in violation of the Securities
Act or other applicable federal, state or foreign securities Laws (other than
any thereof caused by acts or omissions of Owner);
(j) (i) With
respect to any Indemnitee (other than Mortgagee), to the extent attributable
to
the failure of the Mortgagee to distribute funds received and distributable
by
it in accordance with the Trust Indenture, (ii) with respect to any
Indemnitee (other than the Subordination Agent), to the extent attributable
to
the failure of the Subordination Agent to distribute funds received and
distributable by it in accordance with the Intercreditor Agreement,
(iii) with respect to any Indemnitee (other than the Pass Through
Trustees), to the extent attributable to the failure of a Pass Through Trustee
to distribute funds received and distributable by it in accordance with the
Pass
Through Trust Agreements, (iv) with respect to any Indemnitee (other than
the Escrow Agent), to the extent attributable to the failure of the Escrow
Agent
to pay funds received and payable by it in accordance with any Escrow Agreement,
(v) with respect to any Indemnitee (other than the Paying Agent), to the
extent attributable to the failure of the Paying Agent to distribute funds
received and distributable by it in accordance with any Escrow Agreement,
(vi) to the extent attributable to the failure of the Depositary to pay
funds payable by it in accordance with any Deposit Agreement, (vii) with
respect to Mortgagee, to the extent attributable to the negligence or willful
misconduct of Mortgagee in the distribution of funds received and distributable
by it in accordance with the Trust Indenture, (viii) with respect to the
Subordination Agent, to the extent attributable to the negligence or willful
misconduct of the Subordination Agent in the distribution of funds received
and
distributable by it in accordance with the Intercreditor Agreement,
(ix) with respect to the Pass Through Trustees, to the extent attributable
to the negligence or willful misconduct of a Pass Through Trustee in the
distribution of funds received and distributable by it in accordance with the
Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the
extent attributable to the negligence or willful misconduct of the Escrow Agent
in the payment of funds received and payable by it in accordance with
any
Escrow Agreement and (xi) with respect to the Paying Agent, to the extent
attributable to the negligence or willful misconduct of the Paying Agent in
the
distribution of funds received and distributable by it in accordance with any
Escrow Agreement;
(k) Other
than during the continuation of an Event of Default, to the extent attributable
to the authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any Operative Agreement or
Pass
Through Agreement other than such as have been requested by Owner or as are
required by or made pursuant to the terms of the Operative Agreements or Pass
Through Agreements (unless such requirement results from the actions of an
Indemnitee not required by or made pursuant to the Operative Agreements or
the
Pass Through Agreements);
(l) To
the
extent attributable to any amount which any Indemnitee expressly agrees to
pay
or such Indemnitee expressly agrees shall not be paid by or be reimbursed by
Owner;
(m) To
the
extent that it is an ordinary and usual operating or overhead
expense;
(n) [Intentionally
Omitted]
(o) For
any
Lien attributable to such Indemnitee or any related Indemnitee;
(p) If
another provision of an Operative Agreement or a Pass Through Agreement
specifies the extent of Owner’s responsibility or obligation with respect to
such Expense, to the extent arising from other than failure of Owner to comply
with such specified responsibility or obligation; or
(q) To
the
extent incurred by or asserted against an Indemnitee as a result of any
"prohibited
transaction",
within
the meaning of Section 406 of ERISA or Section 4975(c)(1) of the
Code.
For
purposes of this Section 8.1, a Person shall be considered a "related"
Indemnitee with respect to an Indemnitee if such Person is an Affiliate or
employer of such Indemnitee, a director, officer, employee, agent, or servant
of
such Indemnitee or any such Affiliate or a successor or permitted assignee
of
any of the foregoing.
8.1.3 Separate
Agreement
This
Agreement constitutes a separate agreement with respect to each Indemnitee
and
is enforceable directly by each such Indemnitee.
8.1.4 Notice
If
a
claim for any Expense that an Indemnitee shall be indemnified against under
this
Section 8.1 is made, such Indemnitee shall give prompt written notice
thereof to Owner. Notwithstanding the foregoing, the failure of any Indemnitee
to notify Owner as provided in this Section 8.1.4, or in Section 8.1.5,
shall not release Owner from any of its obligations to indemnify such Indemnitee
hereunder, except to the extent that such failure results in an additional
Expense to Owner (in which event Owner shall not be responsible for such
additional expense) or materially impairs Owner’s ability to contest such
claim.
8.1.5 Notice
of Proceedings; Defense of Claims; Limitations
(a) In
case
any action, suit or proceeding shall be brought against any Indemnitee for
which
Owner is responsible under this Section 8.1, such Indemnitee shall notify
Owner of the commencement thereof and Owner may, at its expense, participate
in
and to the extent that it shall wish (subject to the provisions of the following
paragraph), assume and control the defense thereof and, subject to
Section 8.1.5(c), settle or compromise the same.
(b) Owner
or
its insurer(s) shall have the right, at its or their expense, to investigate
or,
if Owner or its insurer(s) shall agree not to dispute liability to the
Indemnitee giving notice of such action, suit or proceeding under this
Section 8.1.5 for indemnification hereunder or under any insurance policies
pursuant to which coverage is sought, control the defense of, any action, suit
or proceeding, relating to any Expense for which indemnification is sought
pursuant to this Section 8.1, and each Indemnitee shall cooperate with
Owner or its insurer(s) with respect thereto; provided,
that
Owner shall not be entitled to control the defense of any such action, suit,
proceeding or compromise any such Expense during the continuance of any Event
of
Default. In connection with any such action, suit or proceeding being controlled
by Owner, such Indemnitee shall have the right to participate therein, at its
sole cost and expense, with counsel reasonably satisfactory to Owner;
provided,
that
such Indemnitee’s participation does not, in the reasonable opinion of the
independent counsel appointed by the Owner or its insurers to conduct such
proceedings, interfere with the defense of such case.
(c) In
no
event shall any Indemnitee enter into a settlement or other compromise with
respect to any Expense without the prior written consent of Owner, which consent
shall not be unreasonably withheld or delayed, unless such Indemnitee waives
its
right to be indemnified with respect to such Expense under this Section
8.1.
(d) In
the
case of any Expense indemnified by the Owner hereunder which is covered by
a
policy of insurance maintained by Owner pursuant to Section 4.06 of the
Indenture, at Owner’s expense, each Indemnitee agrees to cooperate with the
insurers in the exercise of their rights to investigate, defend or compromise
such Expense as may be required to retain the benefits of such insurance with
respect to such Expense.
(e) If
an
Indemnitee is not a party to this Agreement, Owner may require such Indemnitee
to agree in writing to the terms of this Section 8 and Section 12.8
prior to making any payment to such Indemnitee under this
Section 8.
(f) Nothing
contained in this Section 8.1.5 shall be deemed to require an Indemnitee to
contest any Expense or to assume responsibility for or control of any judicial
proceeding with respect thereto.
8.1.6 Information
Owner
will provide the relevant Indemnitee with such information not within the
control of such Indemnitee, as is in Owner’s control or is reasonably available
to Owner, which such Indemnitee may reasonably request and will otherwise
cooperate with such Indemnitee so as to enable such Indemnitee to fulfill its
obligations under Section 8.1.5. The Indemnitee shall supply Owner with
such information not within the control of Owner, as is in such Indemnitee’s
control or is reasonably available to such Indemnitee, which Owner may
reasonably request to control or participate in any proceeding to the extent
permitted by Section 8.1.5.
8.1.7 Effect
of Other Indemnities; Subrogation; Further Assurances
Upon
the
payment in full by Owner of any indemnity provided for under this Agreement,
Owner, without any further action and to the full extent permitted by Law,
will
be subrogated to all rights and remedies of the person indemnified (other than
with respect to any of such Indemnitee’s insurance policies or in connection
with any indemnity claim such Indemnitee may have under Section 6.03 or
8.01 of the Trust Indenture) in respect of the matter as to which such indemnity
was paid. Each Indemnitee will give such further assurances or agreements and
cooperate with Owner to permit Owner to pursue such claims, if any, to the
extent reasonably requested by Owner and at Owner’s expense.
8.1.8 Refunds
If
an
Indemnitee receives any refund, in whole or in part, with respect to any Expense
paid by Owner hereunder, it will promptly pay the amount refunded (but not
an
amount in excess of the amount Owner or any of its insurers has paid in respect
of such Expense) over to Owner unless an Event of Default shall have occurred
and be continuing, in which case such amounts shall be paid over to Mortgagee
to
hold as security for Owner’s obligations under the Operative Agreements or, if
requested by Owner, applied to satisfy such obligations.
8.2 Expenses
8.2.1 Invoices
and Payment
The
Mortgagee, the Applicable Pass Through Trustees and the Subordination Agent
shall promptly submit to Owner for its prompt approval (which shall not be
unreasonably withheld) copies of invoices in reasonable detail of the
Transaction Expenses for which it is responsible for providing information
as
they are received (but in no event later than the 90th day after the Closing
Date). If so submitted and approved, the Owner agrees promptly, but in any
event
no later than the 105th day after the Closing Date, to pay Transaction Expenses.
8.2.2 Payment
of Other Expenses
Owner
shall pay (i) the ongoing fees and expenses of Mortgagee, and (ii) all
reasonable out-of-pocket costs and expenses (including the reasonable fees
and
disbursements of counsel) incurred by Mortgagee or any Note Holder attributable
to
any
waiver, amendment or modification of any Operative Agreement to the extent
requested by Owner.
8.3 General
Tax Indemnity
8.3.1 General
Except
as
provided in Section 8.3.2, Owner agrees that each payment paid by Owner under
the Equipment Notes, and any other payment or indemnity paid by Owner to a
Tax
Indemnitee under any Operative Agreement, shall be free of all withholdings
or
deductions with respect to Taxes of any nature (other than U.S. federal, state
or local withholding taxes on, based on or measured by gross or net income),
and
in the event that Owner shall be required by applicable law to make any such
withholding or deduction for any such payment (x) Owner shall make all such
withholdings or deductions, (y) the amount payable by Owner shall be increased
so that after making all required withholdings or deductions such Tax Indemnitee
receives the same amount that it would have received had no such withholdings
or
deductions been made, and (z) Owner shall pay the full amount withheld or
deducted to the relevant Taxing Authority in accordance with applicable law.
Except as provided in Section 8.3.2 and whether or not any of the transactions
contemplated hereby are consummated, Owner shall pay, indemnify, protect, defend
and hold each Tax Indemnitee harmless from all Taxes imposed by any Taxing
Authority that may from time to time be imposed on or asserted against any
Tax
Indemnitee or the Aircraft, the Airframe, any Engine or any Part or any interest
in any of the foregoing (whether or not indemnified against by any other
Person), upon or with respect to the Operative Agreements or the transactions
or
payments contemplated thereby, including but not limited to any Tax imposed
upon
or with respect to (x) the Aircraft, the Airframe, any Engine, any Part,
any Operative Agreement (including without limitation any Equipment Notes)
or
any data or any other thing delivered or to be delivered under an Operative
Agreement, (y) the purchase, manufacture, acceptance, rejection, sale,
transfer of title, return, ownership, mortgaging, delivery, transport, charter,
rental, lease, re-lease, sublease, assignment, possession, repossession,
presence, use, condition, storage, preparation, maintenance, modification,
alteration, improvement, operation, registration, transfer or change of
registration, reregistration, repair, replacement, overhaul, location, control,
the imposition of any Lien, financing, refinancing requested by the Owner,
abandonment or other disposition of the Aircraft, the Airframe, any Engine,
any
Part, any data or any other thing delivered or to be delivered under an
Operative
Agreement
or (z) interest, fees or any other income, proceeds, receipts or earnings,
whether actual or deemed, arising upon, in connection with, or in respect of,
any of the Operative Agreements (including the property or income or other
proceeds with respect to property held as part of the Collateral) or the
transactions contemplated thereby.
8.3.2 Certain
Exceptions
The
provisions of Section 8.3.1 shall not apply to, and Owner shall have no
liability hereunder for, Taxes:
(a) imposed
on a Tax Indemnitee by the federal government of the United States or any Taxing
Authority or governmental subdivision of the United States or therein (including
any state or local Taxing Authority) (i) on, based on, or measured by, gross
or
net income or gross or net receipts, including capital gains taxes, excess
profits taxes, minimum taxes from tax preferences, alternative minimum taxes,
branch profits taxes, accumulated earnings taxes, personal holding company
taxes, succession taxes and estate taxes, and any withholding taxes on, based
on
or measured by gross or net income or receipts or (ii) on, or with respect
to,
or measured by, capital or net worth or in the nature of a franchise tax or
a
tax for the privilege of doing business (other than, in the case of clause
(i)
or (ii), sales, use, license or property Taxes);
(b) imposed
on a Tax Indemnitee by any Taxing Authority or governmental subdivision thereof
or therein outside of the United States (including any Taxing Authority in
or of
a territory, possession or commonwealth of the United States) (i) on, based
on,
or measured by, gross or net income or gross or net receipts, including capital
gains taxes, excess profits taxes, minimum taxes from tax preferences,
alternative minimum taxes, branch profits taxes, accumulated earnings taxes,
personal holding company taxes, succession taxes and estate taxes, and any
withholding taxes on, based on or measured by gross or net income or receipts
or
(ii) on, or with respect to, or measured by, capital or net worth or in the
nature of a franchise tax or a tax for the privilege of doing business (other
than, in the case of clause (i) or (ii), (A) sales, use, license or property
Taxes, or (B) any Taxes imposed by any Taxing Authority (other than a Taxing
Authority within whose jurisdiction such Tax Indemnitee is incorporated or
organized or maintains its principal place of business) if such Tax Indemnitee
would not have been subject to Taxes of such type by such jurisdiction but
for
(I) the location, use or operation of the Aircraft, the Airframe, any Engine
or
any Part thereof by an
Owner
Person within the jurisdiction of the Taxing Authority imposing such Tax, or
(II) the activities of any Owner Person in such jurisdiction, including, but
not
limited to, use of any other aircraft by Owner in such jurisdiction, (III)
the
status of any Owner Person as a foreign entity or as an entity owned in whole
or
in part by foreign persons, (IV) Owner having made (or having been deemed to
have made) payments to such Tax Indemnitee from the relevant jurisdiction or
(V) in the case of the Pass Through Trustees, the Note Holders or any
related Tax Indemnitee, the Owner being incorporated or organized or maintaining
a place of business or conducting activities in such jurisdiction);
(c) on,
or
with respect to, or measured by, any trustee fees, commissions or compensation
received by the Pass Through Trustee, Subordination Agent or
Mortgagee;
(d) that
are
being contested as provided in Section 8.3.4 hereof;
(e) imposed
on any Tax Indemnitee to the extent that such Taxes result from the gross
negligence or willful misconduct of such Tax Indemnitee or any Affiliate
thereof;
(f) imposed
on or with respect to a Tax Indemnitee (including the transferee in those cases
in which the Tax on transfer is imposed on, or is collected from, the
transferee) as a result of a transfer or other disposition (including a deemed
transfer or disposition) by such Tax Indemnitee or a related Tax Indemnitee
of
any interest in the Aircraft, the Airframe, any Engine or any Part, any interest
arising under the Operative Agreements or any Equipment Note or as a result
of a
transfer or disposition (including a deemed transfer or disposition) of any
interest in a Tax Indemnitee (other than (A) a substitution or replacement
of
the Aircraft, the Airframe, any Engine or any Part by an Owner Person that
is
treated for Tax purposes as a transfer or disposition, or (B) a transfer
pursuant to an exercise of remedies upon an Event of Default that shall have
occurred and have been continuing);
(g) Taxes
in
excess of those that would have been imposed had there not been a transfer
or
other disposition by or to such Tax Indemnitee or a related Tax Indemnitee
described in paragraph (f) above;
(h) consisting
of any interest, penalties or additions to tax imposed on a Tax Indemnitee
as a
result of (in whole or in part) failure of such Tax Indemnitee or a related
Tax
Indemnitee
to
file
any return properly and timely, unless such failure shall be caused by the
failure of Owner to fulfill its obligations, if any, under Section 8.3.6
with respect to such return;
(i) resulting
from, or that would not have been imposed but for, any Liens arising as a result
of claims against, or acts or omissions of, or otherwise attributable to such
Tax Indemnitee or a related Tax Indemnitee that the Owner is not obligated
to
discharge under the Operative Agreements;
(j) imposed
on any Tax Indemnitee as a result of the breach by such Tax Indemnitee or a
related Tax Indemnitee of any covenant of such Tax Indemnitee or any Affiliate
thereof contained in any Operative Agreement or the inaccuracy of any
representation or warranty by such Tax Indemnitee or any Affiliate thereof
in
any Operative Agreement;
(k) in
the
nature of an intangible or similar Tax (i) upon or with respect to the value
or
principal amount of the interest of any Note Holder in any Equipment Note or
the
loan evidenced thereby but only if such Taxes are in the nature of franchise
Taxes or result from the Tax Indemnitee doing business in the taxing
jurisdiction and are imposed because of the place of incorporation or the
activities unrelated to the transactions contemplated by the Operative
Agreements in the taxing jurisdiction of such Tax Indemnitee;
(l) imposed
on a Tax Indemnitee by a Taxing Authority of a jurisdiction outside the United
States to the extent that such Taxes would not have been imposed but for a
connection between the Tax Indemnitee or a related Tax Indemnitee and such
jurisdiction imposing such Tax unrelated to the transactions contemplated by
the
Operative Agreements; or
(m) Taxes
relating to ERISA or Section 4975 of the Code.
For
purposes hereof, a Tax Indemnitee and any other Tax Indemnitees that are
successors, assigns, agents, servants or Affiliates of such Tax Indemnitee
shall
be related Tax Indemnitees.
8.3.3 Payment
(a) Owner’s
indemnity obligation to a Tax Indemnitee under this Section 8.3 shall equal
the
amount which, after taking into account any Tax imposed upon the receipt or
accrual of the amounts payable under this Section 8.3 and any tax benefits
actually
recognized by such Tax Indemnitee as a result of the indemnifiable Tax
(including, without limitation, any benefits recognized as a result of an
indemnifiable Tax being utilized by such Tax Indemnitee as a credit against
Taxes not indemnifiable under this Section 8.3), shall equal the amount of
the
Tax indemnifiable under this Section 8.3.
(b) At
Owner’s request, the computation of the amount of any indemnity payment owed by
Owner or any amount owed by a Tax Indemnitee to Owner pursuant to this Section
8.3 shall be verified and certified by an independent public accounting firm
selected by such Tax Indemnitee and reasonably satisfactory to Owner. Such
verification shall be binding. The costs of such verification (including the
fee
of such public accounting firm) shall be borne by Owner unless such verification
shall result in an adjustment in Owner’s favor of 5% or more of the net present
value of the payment as computed by such Tax Indemnitee, in which case the
costs
shall be paid by such Tax Indemnitee.
(c) Each
Tax
Indemnitee shall provide Owner with such certifications, information and
documentation as shall be in such Tax Indemnitee’s possession and as shall be
reasonably requested by Owner to minimize any indemnity payment pursuant to
this
Section 8.3; provided, that notwithstanding anything to the contrary contained
herein, no Tax Indemnitee shall be required to provide Owner with any Tax
returns.
(d) Each
Tax
Indemnitee shall promptly forward to Owner any written notice, ▇▇▇▇ or advice
received by it from any Taxing Authority concerning any Tax for which it seeks
indemnification under this Section 8.3. Owner shall pay any amount for which
it
is liable pursuant to this Section 8.3 directly to the appropriate Taxing
Authority if legally permissible or upon demand of a Tax Indemnitee, to such
Tax
Indemnitee within 30 days of such demand (or, if a contest occurs in accordance
with Section 8.3.4, within 30 days after a Final Determination (as defined
below)), but in no event more than one Business Day prior to the date the Tax
to
which such amount payable hereunder relates is due. If requested by a Tax
Indemnitee in writing, Owner shall furnish to the appropriate Tax Indemnitee
the
original or a certified copy of a receipt for Owner’s payment of any Tax paid by
Owner or such other evidence of payment of such Tax as is acceptable to such
Tax
Indemnitee. Owner shall also furnish promptly upon written request such data
as
any Tax Indemnitee may reasonably require to enable such Tax Indemnitee to
comply with the requirements of any taxing jurisdiction unless such data is
not
reasonably available to Owner or, unless such data is specifically requested
by
a Taxing
Authority,
is not customarily furnished by domestic air carriers under similar
circumstances. For purposes of this Section 8.3, a "Final
Determination"
shall
mean (i) a decision, judgment, decree or other order by any court of competent
jurisdiction that occurs pursuant to the provisions of Section 8.3.4, which
decision, judgment, decree or other order has become final and unappealable,
(ii) a closing agreement or settlement agreement entered into in accordance
with
Section 8.3.4 that has become binding and is not subject to further review
or
appeal (absent fraud, misrepresentation, etc.), or (iii) the termination of
administrative proceedings and the expiration of the time for instituting a
claim in a court proceeding.
(e) If
any
Tax Indemnitee shall actually realize a tax savings by reason of any Tax paid
or
indemnified by Owner pursuant to this Section 8.3 (whether such tax savings
shall be by means of a foreign tax credit, depreciation or cost recovery
deduction or otherwise) and such savings is not otherwise taken into account
in
computing such payment or indemnity such Tax Indemnitee shall pay to Owner
an
amount equal to the lesser of (i) the amount of such tax savings, plus any
additional tax savings recognized as the result of any payment made pursuant
to
this sentence, when, as, if, and to the extent, realized or (ii) the amount
of
all payments pursuant to this Section 8.3 by Owner to such Tax Indemnitee (less
any payments previously made by such Tax Indemnitee to Owner pursuant to this
Section 8.3.3 (e)) (and the excess, if any, of the amount described in clause
(i) over the amount described in clause (ii) shall be carried forward and
applied to reduce pro tanto any subsequent obligations of Owner to make payments
to such Tax Indemnitee pursuant to this Section 8.3); provided, that such Tax
Indemnitee shall not be required to make any payment pursuant to this sentence
so long as a Lease Event of Default of a monetary nature has occurred and is
continuing. If a tax benefit is later disallowed or denied, the disallowance
or
denial shall be treated as a Tax indemnifiable under Section 8.3.1 without
regard to the provisions of Section 8.3.2 (other than Section 8.3.2 (f)). Each
such Tax Indemnitee shall in good faith use reasonable efforts in filing its
tax
returns and in dealing with Taxing Authorities to seek and claim any such tax
benefit.
8.3.4 Contest
(a) If
a
written claim is made against a Tax Indemnitee for Taxes with respect to which
Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee
makes a determination that a Tax is due for which Owner could have an indemnity
obligation hereunder, such Tax Indemnitee shall
promptly
give Owner notice in writing of such claim (provided, that failure to so notify
Owner shall not relieve Owner of its indemnity obligations hereunder unless
such
failure to notify effectively forecloses Owner’s rights to require a contest of
such claim) and shall take no action with respect to such claim without the
prior written consent of Owner for 30 days following the receipt of such notice
by Owner; provided, that, in the case of a claim made against a Tax Indemnitee,
if such Tax Indemnitee shall be required by law to take action prior to the
end
of such 30-day period, such Tax Indemnitee shall, in such notice to Owner,
so
inform Owner, and such Tax Indemnitee shall take no action for as long as it
is
legally able to do so (it being understood that a Tax Indemnitee shall be
entitled to pay the Tax claimed and ▇▇▇ for a refund prior to the end of such
30-day period if (i)(A) the failure to so pay the Tax would result in
substantial penalties (unless immediately reimbursed by Owner) and the act
of
paying the Tax would not materially prejudice the right to contest or (B) the
failure to so pay would result in criminal penalties and (ii) such Tax
Indemnitee shall take any action so required in connection with so paying the
Tax in a manner that is the least prejudicial to the pursuit of the contest).
In
addition, such Tax Indemnitee shall (provided, that Owner shall have agreed
to
keep such information confidential other than to the extent necessary in order
to contest the claim) furnish Owner with copies of any requests for information
from any Taxing Authority relating to such Taxes with respect to which Owner
may
be required to indemnify hereunder. If requested by Owner in writing within
30
days after its receipt of such notice, such Tax Indemnitee shall, at the expense
of Owner (including, without limitation, all reasonable costs, expenses and
reasonable attorneys’ and accountants’ fees and disbursements), in good faith
contest (or, if permitted by applicable law, allow Owner to contest) through
appropriate administrative and judicial proceedings the validity, applicability
or amount of such Taxes by (I) resisting payment thereof, (II) not paying the
same except under protest if protest is necessary and proper or (III) if the
payment is made, using reasonable efforts to obtain a refund thereof in an
appropriate administrative and/or judicial proceeding. If requested to do so
by
Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial
decision, except that the Tax Indemnitee shall not be required to pursue any
appeals to the United States Supreme Court. If and to the extent the Tax
Indemnitee is able to separate the contested issue or issues from other issues
arising in the same administrative or judicial proceeding that are unrelated
to
the transactions contemplated by the Operative Agreements without, in the good
faith judgment
of
such
Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee
shall permit Owner to control the conduct of any such proceeding and shall
provide to Owner (at Owner’s cost and expense) with such information or data
that is in such Tax Indemnitee’s control or possession that is reasonably
necessary to conduct such contest. In the case of a contest controlled by a
Tax
Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding
the manner of contesting such claim and shall keep Owner reasonably informed
regarding the progress of such contest. A Tax Indemnitee shall not fail to
take
any action expressly required by this Section 8.3.4 (including, without
limitation, any action regarding any appeal of an adverse determination with
respect to any claim) or settle or compromise any claim without the prior
written consent of the Owner (except as contemplated by Section 8.3.4(b) or
(c)).
(b) Notwithstanding
the foregoing, in no event shall a Tax Indemnitee be required to pursue any
contest (or to permit Owner to pursue any contest) unless (i) Owner shall have
agreed to pay such Tax Indemnitee on demand all reasonable costs and expenses
incurred by such Tax Indemnitee in connection with contesting such Taxes,
including, without limitation, all reasonable out of pocket costs and expenses
and reasonable attorneys’ and accountants’ fees and disbursements, (ii) if such
contest shall involve the payment of the claim, Owner shall advance the amount
thereof (to the extent indemnified hereunder) plus interest, penalties and
additions to tax with respect thereto that are required to be paid prior to
the
commencement of such contest on an interest-free after-Tax basis to such Tax
Indemnitee (and such Tax Indemnitee shall promptly pay to the Owner any net
realized tax benefits resulting from such advance including any tax benefits
resulting from making such payment), (iii) such Tax Indemnitee shall have
reasonably determined that the action to be taken will not result in any
material risk of forfeiture, sale or loss of the Aircraft (unless Owner shall
have made provisions to protect the interests of any such Tax Indemnitee in
a
manner reasonably satisfactory to such Tax Indemnitee) (provided, that such
Tax
Indemnitee agrees to notify Owner in writing promptly after it becomes aware
of
any such risk), (iv) no Lease Event of Default shall have occurred and be
continuing unless Owner has provided security for its obligations hereunder
by
advancing to such Tax Indemnitee before proceeding or continuing with such
contest, the amount of the Tax being contested, plus any interest and penalties
and an amount estimated in good faith by such Tax Indemnitee for expenses,
and
(v) prior to commencing any judicial action controlled by Owner, Owner shall
have acknowledged its liability for such claim
hereunder,
provided that Owner shall not be bound by its acknowledgment if the Final
Determination articulates conclusions of law and fact that demonstrate that
Owner has no liability for the contested amounts hereunder. Notwithstanding
the
foregoing, if any Tax Indemnitee shall release, waive, compromise or settle
any
claim which may be indemnifiable by Owner pursuant to this Section 8.3 without
the written permission of Owner, Owner’s obligation to indemnify such Tax
Indemnitee with respect to such claim (and all directly related claims and
claims based on the outcome of such claim) shall terminate, subject to Section
8.3.4(c), and subject to Section 8.3.4(c), such Tax Indemnitee shall repay
to
Owner any amount previously paid or advanced to such Tax Indemnitee with respect
to such claim, plus interest at the rate that would have been payable by the
relevant Taxing Authority with respect to a refund of such Tax.
(c) Notwithstanding
anything contained in this Section 8.3, a Tax Indemnitee will not be required
to
contest the imposition of any Tax and shall be permitted to settle or compromise
any claim without Owner’s consent if such Tax Indemnitee (i) shall waive its
right to indemnity under this Section 8.3 with respect to such Tax (and any
directly related claim and any claim the outcome of which is determined based
upon the outcome of such claim), (ii) shall pay to Owner any amount previously
paid or advanced by Owner pursuant to this Section 8.3 with respect to such
Tax,
plus interest at the rate that would have been payable by the relevant Taxing
Authority with respect to a refund of such Tax, and (iii) shall agree to discuss
with Owner the views or positions of any relevant Taxing Authority with respect
to the imposition of such Tax.
8.3.5 Refund
If
any
Tax Indemnitee shall receive a refund of, or be entitled to a credit against
other liability for, all or any part of any Taxes paid, reimbursed or advanced
by Owner, such Tax Indemnitee shall pay to Owner within 30 days of such receipt
an amount equal to the lesser of (a) the amount of such refund or credit plus
any net tax benefit (taking into account any Taxes incurred by such Tax
Indemnitee by reason of the receipt of such refund or realization of such
credit) actually realized by such Tax Indemnitee as a result of any payment
by
such Tax Indemnitee made pursuant to this sentence (including this clause (a))
and (b) such tax payment, reimbursement or advance by Owner to such Tax
Indemnitee theretofore made pursuant to this Section 8.3 (and the excess, if
any, of the amount described in clause (a) over the amount described in clause
(b) shall be carried
forward
and applied to reduce pro tanto any subsequent obligation of Owner to make
payments to such Tax Indemnitee pursuant to this Section 8.3). If, in addition
to such refund or credit, such Tax Indemnitee shall receive (or be credited
with) an amount representing interest on the amount of such refund or credit,
such Tax Indemnitee shall pay to Owner within 30 days of such receipt or
realization of such credit that proportion of such interest that shall be fairly
attributable to Taxes paid, reimbursed or advanced by Owner prior to the receipt
of such refund or realization of such credit.
8.3.6 Tax
Filing
If
any
report, return or statement is required to be filed with respect to any Tax
which is subject to indemnification under this Section 8.3, Owner shall timely
file the same (except for any such report, return or statement which a Tax
Indemnitee has timely notified the Owner in writing that such Tax Indemnitee
intends to file, or for which such Tax Indemnitee is required by law to file,
in
its own name); provided, that the relevant Tax Indemnitee shall furnish Owner
with any information in such Tax Indemnitee’s possession or control that is
reasonably necessary to file any such return, report or statement and is
reasonably requested in writing by Owner (it being understood that the Tax
Indemnitee shall not be required to furnish copies of its actual tax returns,
although it may be required to furnish relevant information contained therein).
Owner shall either file such report, return or statement and send a copy of
such
report, return or statement to such Tax Indemnitee, or, where Owner is not
permitted to file such report, return or statement, it shall notify such Tax
Indemnitee of such requirement and prepare and deliver such report, return
or
statement to such Tax Indemnitee in a manner satisfactory to such Tax Indemnitee
within a reasonable time prior to the time such report, return or statement
is
to be filed.
8.3.7 Forms
Each
Tax
Indemnitee agrees to furnish from time to time to Owner or Mortgagee or to
such
other person as Owner or Mortgagee may designate, at Owner’s or Mortgagee’s
request, such duly executed and properly completed forms as may be necessary
or
appropriate in order to claim any reduction of or exemption from any withholding
or other Tax imposed by any Taxing Authority, if (x) such reduction or exemption
is available to such Tax Indemnitee and (y) Owner has provided such Tax
Indemnitee with any information necessary to complete such form not otherwise
reasonably available to such Tax Indemnitee.
8.3.8 Non-Parties
If
a Tax
Indemnitee is not a party to this Agreement, Owner may require the Tax
Indemnitee to agree in writing, in a form reasonably acceptable to Owner, to
the
terms of this Section 8.3 and Section 15.8 prior to making any payment to
such Tax Indemnitee under this Section 8.3.
8.3.9 Subrogation
Upon
payment of any Tax by Owner pursuant to this Section 8.3 to or on behalf of
a
Tax Indemnitee, Owner, without any further action, shall be subrogated to any
claims that such Tax Indemnitee may have relating thereto. Such Tax Indemnitee
shall cooperate with Owner (to the extent such cooperation does not result
in
any unreimbursed cost, expense or liability to such Tax Indemnitee) to permit
Owner to pursue such claims.
8.4 Payments
Any
payments made pursuant to Section 8.1 or 8.3 shall be due on the 60th day
after demand therefor and shall be made directly to the relevant Indemnitee
or
Tax Indemnitee or to Owner, in immediately available funds at such bank or
to
such account as specified by such Indemnitee or Tax Indemnitee or Owner, as
the
case may be, in written directives to the payor, or, if no such direction shall
have been given, by check of the payor payable to the order of, and mailed
to,
such Indemnitee or Tax Indemnitee or Owner, as the case may be, by certified
mail, postage prepaid, at its address as set forth in this
Agreement.
8.5 Interest
If
any
amount, payable by Owner, any Indemnitee or any Tax Indemnitee under
Section 8.1 or 8.3 is not paid when due, the person obligated to make such
payment shall pay on demand, to the extent permitted by Law, to the person
entitled thereto, interest on any such amount for the period from and including
the due date for such amount to but excluding the date the same is paid, at
the
Payment Due Rate. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
8.6 Benefit
of Indemnities
The
obligations of Owner in respect of all indemnities, obligations, adjustments
and
payments in Section 8.1 or 8.3 are expressly made for the benefit of, and
shall be enforceable by,
the
Indemnitee or Tax Indemnitee entitled thereto, notwithstanding any provision
of
the Trust Indenture.
SECTION
9. ASSIGNMENT
OR TRANSFER OF INTEREST
9.1 Note
Holders
Subject
to Section 6.3.2 hereof and Section 2.07 of the Trust Indenture, any Note
Holder may, at any time and from time to time, Transfer or grant participations
in all or any portion of the Equipment Notes and/or all or any portion of its
beneficial interest in its Equipment Notes to any person (it being understood
that the sale or issuance of Pass Through Certificates by a Pass Through Trustee
shall not be considered a Transfer or participation); provided,
that
any participant in any such participations shall not have any direct rights
under the Operative Agreements or any Lien on all or any part of the Aircraft
or
the Collateral and Owner shall not have any increased liability or obligations
as a result of any such participation. In the case of any such Transfer, the
Transferee, by acceptance of Equipment Notes in connection with such Transfer,
shall be deemed to be bound by (i) all of the covenants of Note Holders
contained in the Operative Agreements and (ii) certain terms of the
Intercreditor Agreement as specified in such Equipment Notes and/or Section
2.07
of the Trust Indenture.
9.2 Effect
of Transfer
Upon
any
Transfer in accordance with Section 9.1 (other than any Transfer by any
Note Holder, to the extent it only grants participations in Equipment Notes
or
in its beneficial interest therein), Transferee shall be deemed a "Note
Holder,"
for all
purposes of this Agreement and the other Operative Agreements, and the
transferring Note Holder shall be released from all of its liabilities and
obligations under this Agreement and any other Operative Agreements to the
extent such liabilities and obligations arise after such Transfer and, in each
case, to the extent such liabilities and obligations are assumed by the
Transferee; provided,
that
such transferring Note Holder (and its respective Affiliates, successors,
assigns, agents, servants, representatives, directors and officers) will
continue to have the benefit of any rights or indemnities under any Operative
Agreement vested or relating to circumstances, conditions, acts or events prior
to such Transfer.
SECTION
10. SECTION
1110
It
is the
intention of each of the Owner, the Note Holders (such intention being evidenced
by each of their acceptance of an Equipment Note), and Mortgagee that Mortgagee
shall be entitled to the benefits of Section 1110 in the event of a case
under Chapter 11 of the Bankruptcy Code in which Owner is a debtor.
SECTION
11. CHANGE
OF CITIZENSHIP
11.1 Generally
Without
prejudice to the representations, warranties or covenants regarding the status
of any party hereto as a Citizen of the United States, each of Owner, WTC and
Mortgagee agrees that it will, immediately upon obtaining knowledge of any
facts
that would cast doubt upon its continuing status as a Citizen of the United
States and promptly upon public disclosure of negotiations in respect of any
transaction which would or might adversely affect such status, notify in writing
all parties hereto of all relevant matters in connection therewith.
11.2 Mortgagee
Upon
WTC
giving any notice in accordance with Section 11.1, Mortgagee shall (if and
so long as such citizenship is necessary under the Act as in effect at such
time
or, if it is not necessary, if and so long as Mortgagee’s citizenship could have
any adverse effect on Owner, or any Note Holder), subject to Section 9.02
of the Trust Indenture, resign as Mortgagee promptly upon its ceasing to be
such
a citizen.
SECTION
12. MISCELLANEOUS
12.1 Amendments
No
provision of this Agreement may be amended, supplemented, waived, modified,
discharged, terminated or otherwise varied orally, but only by an instrument
in
writing that specifically identifies the provision of this Agreement that it
purports to amend, supplement, waive, modify, discharge, terminate or otherwise
vary and is signed by the party against which the enforcement of the amendment,
supplement, waiver, modification, discharge, termination or variance is sought.
Each such amendment, supplement, waiver, modification, discharge, termination
or
variance shall be effective only in the specific instance and for the specific
purpose for which it
is
given.
No provision of this Agreement shall be varied or contradicted by oral
communication, course of dealing or performance or other manner not set forth
in
an agreement, document or instrument in writing and signed by the party against
which enforcement of the same is sought.
12.2 Severability
If
any
provision hereof shall be held invalid, illegal or unenforceable in any respect
in any jurisdiction, then, to the extent permitted by Law, (a) all other
provisions hereof shall remain in full force and effect in such jurisdiction
and
(b) such invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of such provision in any other
jurisdiction. If, however, any Law pursuant to which such provisions are held
invalid, illegal or unenforceable may be waived, such Law is hereby waived
by
the parties hereto to the full extent permitted, to the end that this Agreement
shall be deemed to be a valid and binding agreement in all respects, enforceable
in accordance with its terms.
12.3 Survival
The
indemnities set forth herein shall survive the delivery or return of the
Aircraft, the Transfer of any interest by any Note Holder of its Equipment
Note
and the expiration or other termination of this Agreement or any other Operative
Agreement.
12.4 Reproduction
of Documents
This
Agreement, all schedules and exhibits hereto and all agreements, instruments
and
documents relating hereto, including, without limitation, (a) consents, waivers
and modifications that may hereafter be executed and (b) financial
statements, certificates and other information previously or hereafter furnished
to any party hereto, may be reproduced by such party by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process, and such party may destroy any original documents so reproduced. Any
such reproduction shall be as admissible in evidence as the original itself
in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such party in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction likewise is admissible in
evidence.
12.5 Counterparts
This
Agreement and any amendments, waivers, consents or supplements hereto may be
executed in any number of counterparts (or upon separate signature pages bound
together into one or more counterparts), each of which when so executed shall
be
deemed to be an original, and all of which counterparts, taken together, shall
constitute one and the same instrument.
12.6 No
Waiver
No
failure on the part of any party hereto to exercise, and no delay by any party
hereto in exercising, any of its respective rights, powers, remedies or
privileges under this Agreement or provided at Law, in equity or otherwise
shall
impair, prejudice or constitute a waiver of any such right, power, remedy or
privilege or be construed as a waiver of any breach hereof or default hereunder
or as an acquiescence therein nor shall any single or partial exercise of any
such right, power, remedy or privilege preclude any other or further exercise
thereof by it or the exercise of any other right, power, remedy or privilege
by
it. No notice to or demand on any party hereto in any case shall, unless
otherwise required under this Agreement, entitle such party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any party hereto to any other or further action in
any
circumstances without notice or demand.
12.7 Notices
Unless
otherwise expressly permitted by the terms hereof, all notices, requests,
demands, authorizations, directions, consents, waivers and other communications
required or permitted to be made, given, furnished or filed hereunder shall
be
in writing (it being understood that the specification of a writing in certain
instances and not in others does not imply an intention that a writing is not
required as to the latter), shall refer specifically to this Agreement or other
applicable Operative Agreement, and shall be personally delivered, sent by
facsimile or telecommunication transmission (which in either case provides
written confirmation to the sender of its delivery), sent by registered mail
or
certified mail, return receipt requested, postage prepaid, or sent by overnight
courier service, in each case to the respective address, or facsimile number
set
forth for such party in Schedule 1, or to such other address, facsimile or
other
number as each party hereto may hereafter specify by notice to the other parties
hereto. Each such notice, request, demand, authorization, direction, consent,
waiver
or
other communication shall be effective when received or, if made, given,
furnished or filed (a) by facsimile or telecommunication transmission, when
confirmed, or (b) by registered or certified mail, three Business Days after
being deposited, properly addressed, with the U.S. Postal Service.
12.8 GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE
(a) THIS
AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
(b) EACH
PARTY HERETO HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY
AND COUNTY OF NEW YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW
YORK, IN CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT
TO
ANY MATTER RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES TO THE SERVICE OF ANY AND
ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE ADDRESS SET
FORTH PURSUANT TO SECTION 12.7. EACH PARTY HERETO HEREBY AGREES THAT
SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS
SECTION 12.8(c), SHALL CONSTITUTE VALID AND EFFECTIVE PERSONAL SERVICE UPON
SUCH
PARTY, AND EACH PARTY HERETO HEREBY AGREES THAT THE FAILURE OF ANY OF ITS AGENTS
TO GIVE ANY NOTICE OF SUCH SERVICE TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT
IN ANY WAY THE VALIDITY OF SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED
IN ANY ACTION OR PROCEEDING BASED THEREON.
(d) EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE,
IN
ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN ANY OF THE ABOVE-NAMED
COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM,
THAT
VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY
OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
(e) EACH
PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR
CAUSE OF ACTION IN ANY COURT IN
ANY
JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
12.9 Third-Party
Beneficiary
This
Agreement is not intended to, and shall not, provide any person not a party
hereto (other than the Indenture Indemnitees (including the Related Note
Holders), each of which is an intended third party beneficiary with respect
to
the provisions of Section 8.1 (and, in the case of the Tax Indemnitees,
Section 8.3) and the persons referred to in Section 6.4.6, which are intended
third party beneficiaries with respect to such Section) with any rights of
any
nature whatsoever against any of the parties hereto and no person not a party
hereto (other than the Indenture Indemnitees (including the Related Note
Holders), with respect to the provisions of Section 8.1 (and, in the case
of the Tax Indemnitees, Section 8.3), and the persons referred to in Section
6.4.6 with respect to the provisions of such Section) shall have any right,
power or privilege in respect of any party hereto, or have any benefit or
interest, arising out of this Agreement.
12.10 Entire
Agreement
This
Agreement, together with the other Operative Agreements, on and as of the date
hereof, constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof, and all prior or contemporaneous understandings
or
agreements, whether written or oral, among any of the parties hereto with
respect to such subject matter are hereby superseded in their
entireties.
12.11 Further
Assurances
Each
party hereto shall execute, acknowledge and deliver or shall cause to be
executed, acknowledged and delivered, all such further agreements, instruments,
certificates or documents, and shall do and cause to be done such further acts
and things, in any case, as any other party hereto shall reasonably request
in
connection with the administration of, or to carry out more effectually the
purposes of, or to better assure and confirm into such other party the rights
and benefits to be provided under this Agreement and the other Operative
Agreements.
[This
space intentionally left blank]
IN
WITNESS WHEREOF, each of the parties has caused this Participation Agreement
to
be duly executed and delivered as of the day and year first above
written.
| CONTINENTAL AIRLINES, INC., | |||
|
Owner
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Mortgagee
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Pass Through Trustee under the Pass Through Trust
Agreement for
the Continental Airlines Pass Through Trust,
2007-1A-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided herein,
but
solely as Pass Through Trustee under the Pass Through Trust
Agreement for
the Continental Airlines Pass Through Trust,
2007-1B-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided
herein, but
solely as Pass Through Trustee under the Pass Through
Trust Agreement for
the Continental Airlines Pass Through Trust,
2007-1C-0
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
| WILMINGTON TRUST COMPANY, | |||
|
not
in its individual capacity, except as expressly provided
herein, but
solely as Subordination Agent
|
|||
|
By
|
|||
|
Name:
|
|||
|
Title:
|
|||
ACCOUNTS;
ADDRESSES
|
Account
for Payments
|
Address
for Notices
|
|
|
Continental
Airlines, Inc.
|
JPMorgan
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: ▇▇▇-▇-▇▇▇▇▇▇
ABA#:
021-000021
Attention: ▇▇▇▇▇
Free
Voice: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Reference:
Continental [___]
|
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇.
▇▇▇-▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
Treasurer
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Wilmington
Trust Company, Mortgagee
|
JPMorgan
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [___]
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust
Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Wilmington
Trust Company, as Subordination Agent
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [__]
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust
Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1A Pass Through
Trust
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference:
Continental [__]
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust
Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1B Pass Through
Trust
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference: Continental
[__]
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust
Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Account
for Payments
|
Address
for Notices
|
|
|
Wilmington
Trust Company, as Pass Through Trustee for the 2007-1C Pass Through
Trust
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account
No.: [___]
ABA#:
021-000021
Attention:
Corporate Trust
Administration
Reference: Continental
[__]
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust
Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
COMMITMENTS
|
Pass
Through
Trustee
|
Series
of
Equipment
Notes
|
Dollar
Amount
of
Loan
|
||
|
SCHEDULE
3 - CERTAIN TERMS
PARTICIPATION
AGREEMENT [___]
|
CERTAIN
TERMS
[OMITTED
AS CONTAINING CONFIDENTIAL FINANCIAL INFORMATION]
PERMITTED
COUNTRIES
|
Argentina
|
Luxembourg
|
|
Australia
|
Malaysia
|
|
Austria
|
Malta
|
|
Bahamas
|
Mexico
|
|
Belgium
|
Morocco
|
|
Bolivia
|
Netherlands
|
|
Brazil
|
Netherlands
Antilles
|
|
Canada
|
New
Zealand
|
|
Chile
|
Norway
|
|
Colombia
|
Panama
|
|
Czech
Republic
|
People’s
Republic of China
|
|
Denmark
|
Peru
|
|
Egypt
|
Philippines
|
|
Ecuador
|
Poland
|
|
Finland
|
Portugal
|
|
France
|
Republic
of China (Taiwan)
|
|
Germany
|
Russia
|
|
Greece
|
Singapore
|
|
Guatemala
|
South
Africa
|
|
Hungary
|
South
Korea
|
|
Iceland
|
Spain
|
|
India
|
Sweden
|
|
Indonesia
|
Switzerland
|
|
Ireland
|
Thailand
|
|
Italy
|
Trinidad
and Tobago
|
|
Jamaica
|
Turkey
|
|
Japan
|
United
Kingdom
|
|
Jordan
|
Uruguay
|
|
Kuwait
|
Venezuela
|