exv4w9






Exhibit 4.9




Exhibit B to Note Purchase Agreement




 

 






PARTICIPATION AGREEMENT

([Reg. No.])




Dated as of __________, 20__1



among



DELTA AIR LINES, INC.,



U.S. BANK TRUST NATIONAL ASSOCIATION,

as Pass Through Trustee under each of the

Pass Through Trust Agreements in effect on the date hereof,



U.S. BANK TRUST NATIONAL ASSOCIATION,

as Subordination Agent,



U.S. BANK TRUST NATIONAL ASSOCIATION,

as Loan Trustee,



and



U.S. BANK TRUST NATIONAL ASSOCIATION,

in its individual capacity as set forth herein



*



One [Boeing][Airbus][McDonnell Douglas] [Model]

(Generic Manufacturer and Model [Generic Manufacturer and Model]) Aircraft

U.S. Registration No. [Reg. No.]



 

 








 




			
	1	 	To insert the relevant Closing Date.





Participation Agreement (2010-2 EETC)

[Reg. No.]





 










 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 1	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 1.01.

	 	 	 	Definitions
	 	 	2	 
	Section 1.02.

	 	 	 	Other Definitional Provisions
	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 2	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	THE LOANS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 2.01.

	 	 	 	The Loans
	 	 	2	 
	Section 2.02.

	 	 	 	Issuance of Equipment Notes
	 	 	3	 
	Section 2.03.

	 	 	 	The Closing
	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 3 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	CONDITIONS PRECEDENT	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 3.01.

	 	 	 	Conditions Precedent to Obligations of Pass Through Trustees
	 	 	3	 
	Section 3.02.

	 	 	 	Conditions Precedent to Obligations of Company
	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 4	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF COMPANY	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 4.01.

	 	 	 	Representations and Warranties of Company
	 	 	10	 
	Section 4.02.

	 	 	 	General Indemnity
	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 5	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	REPRESENTATIONS, WARRANTIES AND COVENANTS OF U.S. BANK 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 5.01.

	 	 	 	Representations, Warranties and Covenants of U.S. Bank
	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 6	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	OTHER COVENANTS AND AGREEMENTS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 6.01.

	 	 	 	Other Agreements
	 	 	22	 
	Section 6.02.

	 	 	 	Certain Covenants of Company
	 	 	25	 





Participation Agreement (2010-2 EETC)

[Reg. No.]





i









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	ARTICLE 7 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Section 7.01.

	 	 	 	Notices
	 	 	28	 
	Section 7.02.

	 	 	 	Survival of Representations, Warranties, Indemnities, Covenants and Agreements
	 	 	29	 
	Section 7.03.

	 	 	 	Governing Law
	 	 	29	 
	Section 7.04.

	 	 	 	Severability
	 	 	30	 
	Section 7.05.

	 	 	 	No Oral Modifications or Continuing Waivers; Consents
	 	 	30	 
	Section 7.06.

	 	 	 	Effect of Headings and Table of Contents
	 	 	30	 
	Section 7.07.

	 	 	 	Successors and Assigns
	 	 	30	 
	Section 7.08.

	 	 	 	Benefits of Agreement
	 	 	30	 
	Section 7.09.

	 	 	 	Counterparts
	 	 	30	 
	Section 7.10.

	 	 	 	Submission to Jurisdiction
	 	 	31	 
	Section 7.11.

	 	 	 	Further Assurances
	 	 	31	 
	Section 7.12.

	 	 	 	Section 1110
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	Schedule I

	 	—
	 	Equipment Notes, Purchasers and Original Principal Amounts	 	 	 	 
	Schedule II

	 	—
	 	Trust Supplements	 	 	 	 
	 
	Exhibit A-1

	 	—
	 	Form of Opinion of Counsel for Company	 	 	 	 
	Exhibit A-2

	 	—
	 	Form of Opinion of Debevoise & Plimpton LLP, special counsel for Company	 	 	 	 
	Exhibit B

	 	—
	 	Form of Opinion of Special Counsel for Loan Trustee, Pass Through Trustees, Subordination Agent and U.S. Bank	 	 	 	 
	Exhibit C

	 	—
	 	Form of Opinion of Special FAA Counsel	 	 	 	 
	Exhibit D

	 	—
	 	[Form of Manufacturer’s Consent]2 [Reserved]3	 	 	 	 
	Exhibit E-1

	 	—
	 	Form of Opinion of Special Delaware Tax Counsel for Pass Through Trustees	 	 	 	 
	Exhibit E-2

	 	—
	 	Form of Opinion of Special Delaware UCC Counsel for Company	 	 	 	 
	[Exhibit F-1

	 	—
	 	Form of French Pledge Agreement	 	 	 	 
	Exhibit F-2

	 	—
	 	Form of Acte de Nantissement de Créances	 	 	 	 
	Exhibit G

	 	—
	 	Form of Opinion of Special French Counsel] 4	 	 	 	 
	Annex A

	 	—
	 	Definitions	 	 	 	 








 




			
	2	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	3	 	To be inserted for MD-90-30 aircraft.
	 
	4	 	To be inserted for Airbus aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]





ii











 






PARTICIPATION AGREEMENT

([REG. NO.])




     This PARTICIPATION AGREEMENT ([REG. NO.]), dated as of __________, 20__5, is made
by and among DELTA AIR LINES, INC., a Delaware corporation (together with its successors and
permitted assigns, “Company”), U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, together with its successors and permitted assigns,
“U.S. Bank”), not in its individual capacity except as otherwise expressly provided in any
of the Operative Documents or the Pass Through Documents, but solely as Pass Through Trustee under
each of the Pass Through Trust Agreements in effect on the date hereof (such terms and other
capitalized terms used herein without definition being defined as provided in Section 1.01), U.S.
BANK TRUST NATIONAL ASSOCIATION, a national banking association, as subordination agent and trustee
(in such capacity, together with any successor trustee in such capacity, “Subordination
Agent”) under the Intercreditor Agreement, and U.S. BANK TRUST NATIONAL ASSOCIATION, as loan
trustee (in such capacity, together with any successor trustee in such capacity, “Loan
Trustee”) under the Indenture.



WITNESSETH:




     WHEREAS, Company is the owner of that certain [Boeing][Airbus][McDonnell Douglas] Model
[Model] aircraft more particularly described in the Indenture Supplement originally executed and
delivered under the Indenture;



     WHEREAS, concurrently with the execution and delivery of this Agreement, Company and Loan
Trustee are entering into the Indenture, pursuant to which, among other things, Company will issue
one or more separate series of Equipment Notes, which Equipment Notes are to be secured by a
security interest in all right, title and interest of Company in and to the Aircraft and certain
other property described in the Indenture;



     WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each of the Trust Supplements
set forth in Schedule II, the Pass Through Trusts in effect on the date hereof were created and the
Pass Through Certificates issued and sold;



     WHEREAS, pursuant to the Intercreditor Agreement, Subordination Agent will hold the Equipment
Notes on behalf of the Pass Through Trusts;



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:





 




			
	5	 	To insert the relevant Closing Date.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 










ARTICLE 1




DEFINITIONS



     Section 1.01. Definitions. For the purposes of this Agreement, unless the context
otherwise requires, capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference in Annex A.



     Section 1.02. Other Definitional Provisions. (a) The definitions stated herein and
in Annex A apply equally to both the singular and the plural forms of the terms defined.




     (b) All references in this Agreement to designated “Articles”, “Sections”,
“Subsections”, “Schedules”, “Exhibits”, “Annexes” and other subdivisions are to the
designated Article, Section, Subsection, Schedule, Exhibit, Annex or other subdivision of
this Agreement, unless otherwise specifically stated.




     (c) The words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section, Subsection,
Schedule, Exhibit, Annex or other subdivision.




     (d) All references in this Agreement to a “government” are to such government and any
instrumentality or agency thereof.




     (e) Unless the context otherwise requires, whenever the words “including”, “include”
or “includes” are used herein, they shall be deemed to be followed by the phrase “without
limitation”.




     (f) All references in this Agreement to a Person shall include successors and
permitted assigns of such Person.



ARTICLE 2




THE LOANS



     Section 2.01. The Loans. Subject to the terms and conditions of this Agreement and
the Indenture, on the Closing Date, Pass Through Trustee for each Pass Through Trust in existence
as of the Closing Date shall make a loan to Company by paying to Company the aggregate original
principal amounts of the Equipment Notes being issued to such Pass Through Trust as set forth on
Schedule I opposite the name of such Pass Through Trust. Pass Through Trustees, on behalf of the
Pass Through Trusts in existence as of the Closing Date, shall make such loans to Company no later
than 11:00 a.m. (New York City time) on the Closing Date by transferring such amount in immediately


 Participation Agreement (2010-2 EETC)

[Reg. No.]




2









 




available funds to Company at its account at JP Morgan Chase Bank, One Chase Manhattan Plaza
— 7th Floor, New York, New York, 10005, Account No. 730131026, ABA Number 021000021,
with the request that the bank advise Company by telephone at (404) 715-2046 upon transfer of the
funds.




     Section 2.02. Issuance of Equipment Notes. Upon the occurrence of the above payments
by Pass Through Trustee for each Pass Through Trust in existence as of the Closing Date to Company,
Company shall issue, pursuant to and in accordance with Article II of the Indenture, to
Subordination Agent as agent and trustee for Pass Through Trustee for each Pass Through Trust, one
or more Equipment Notes of the maturity and aggregate principal amount and bearing the interest
rate set forth in Schedule I opposite the name of such Pass Through Trust. Each such Equipment Note
shall be duly authenticated by Loan Trustee pursuant to the Indenture, registered in the name of
Subordination Agent and dated the Closing Date and shall be delivered by Loan Trustee to
Subordination Agent. In addition, subject to Section 4(a)(v) of the Note Purchase Agreement and
Section 8.01(c) or 8.01(d) of the Intercreditor Agreement, as applicable, Company shall have the
option (i) if no Series B Equipment Notes are issued on the Closing Date, to issue any
Series B Equipment Notes after the Closing Date under the Indenture, and (ii) after any
Series B Equipment Notes shall have been issued (whether on or after the Closing Date), to redeem,
from time to time, all but not less than all of the Series B Equipment Notes and to issue under the
Indenture new Series B Equipment Notes with the same Series B designation as, but with terms that
may differ from those of, the redeemed Series B Equipment Notes. If the Series B Equipment Notes
are so issued after the Closing Date or the new Series B Equipment Notes are issued in connection
with such redemption, each Noteholder of such Series B Equipment Notes or such new Series B
Equipment Notes, as applicable, shall be deemed to be a party hereto without further act, and shall
be entitled to execute, and at the request of Company shall execute, a counterpart to this
Agreement.



     Section 2.03. The Closing. The closing (the “Closing”) of the transactions
contemplated hereby shall take place at the offices of Debevoise & Plimpton LLP, 919 Third Avenue,
New York, New York 10022 at 9:30 a.m. (New York City time) on __________, 20__ or at such other
time or place as the parties shall agree.



ARTICLE 3




CONDITIONS PRECEDENT



     Section 3.01. Conditions Precedent to Obligations of Pass Through Trustees. The
obligation of the Pass Through Trustee of each Pass Through Trust in existence as of the Closing
Date to make the loan contemplated by Article II is subject to the fulfillment (or the waiver by
such Pass Through Trustee) prior to or on the Closing Date of the following conditions precedent:


 Participation Agreement (2010-2 EETC)

[Reg. No.]




3









 






     (a) Authentication. Company shall have tendered the Equipment Notes to Loan
Trustee for authentication, and Loan Trustee shall have authenticated such Equipment Notes
and shall have tendered the Equipment Notes to Subordination Agent on behalf of the
applicable Pass Through Trustee, against receipt of the loan proceeds, in accordance with
Section 2.02.




     (b) No Changes in Law. No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation of law or
governmental regulations for such Pass Through Trustee to make the loans contemplated by
Section 2.01 or to acquire the Equipment Notes.




     (c) Documentation. This Agreement and the following documents shall have been
duly authorized, executed and delivered by the respective party or parties thereto (other
than such Pass Through Trustee or Loan Trustee), shall be in full force and effect and
executed counterparts (or copies thereof where indicated) thereof shall have been delivered
to each relevant Pass Through Trustee:




     (i) the Intercreditor Agreement;




     (ii) the Liquidity Facilities in effect on the Closing Date;




     (iii) the Pass Through Trust Agreements in effect on the Closing Date;




     (iv) the Indenture and the Indenture Supplement covering the Aircraft and
dated the Closing Date;




     (v) [the Manufacturer’s Consent;]6




     (vi) [the French Pledge Agreement;]7




     (vii) a copy of the FAA Bill of Sale; and




     (viii) a copy of the Warranty Bill of Sale.




     (d) Financing Statement. A Uniform Commercial Code financing statement or
statements covering the security interest created by the Indenture naming Company, as
debtor, and Loan Trustee, as secured party, shall have been duly filed in all places
necessary or desirable within the State of Delaware.





 




			
	6	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	7	 	To be inserted for Airbus aircraft.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




4









 











     (e) Certain Closing Certificates. Each such Pass Through Trustee shall have
received the following:




     (i) a certificate dated the Closing Date of the Secretary or an Assistant
Secretary of Company, certifying as to (A) a copy of the resolutions of the
Board of Directors of Company or the executive committee thereof duly authorizing
the transactions contemplated hereby and the execution, delivery and performance by
Company of this Agreement and the Indenture and each other document required to be
executed and delivered by Company in accordance with the provisions hereof or
thereof and (B) a copy of the certificate of incorporation and by-laws of
Company, as in effect on the Closing Date;




     (ii) a certificate or other evidence from the Secretary of State of the State
of Delaware, dated as of a date reasonably near the Closing Date, as to the due
incorporation and good standing of Company in such state;




     (iii) an incumbency certificate of Company as to the person or persons
authorized to execute and deliver this Agreement, the Indenture and each other
document to be executed by Company in connection with the transactions contemplated
hereby and thereby, and the specimen signatures of such person or persons; and




     (iv) one or more certificates of Loan Trustee and Subordination Agent
certifying to the reasonable satisfaction of such Pass Through Trustee as to the
due authorization, execution, delivery and performance by Loan Trustee and
Subordination Agent of each of the Operative Documents to which Loan Trustee or
Subordination Agent is or will be a party and any other documents to be executed by
or on behalf of Loan Trustee or Subordination Agent in connection with the
transactions contemplated hereby or thereby.




     (f) Representations; No Event of Default or Event of Loss. On the Closing
Date, the following statements shall be correct: (i) the representations and
warranties of Company herein are correct in all material respects as though made on and as
of such date, except to the extent that such representations and warranties relate solely
to an earlier date (in which case such representations and warranties are correct on and as
of such earlier date) and (ii) no event has occurred and is continuing that
constitutes an Event of Default or an Event of Loss or would constitute an Event of Default
or Event of Loss but for the requirement that notice be given or time elapse or both.




     (g) Opinion of Counsel to Company. Each such Pass Through Trustee and Loan
Trustee shall have received (i) an opinion addressed to it from the


 Participation Agreement (2010-2 EETC)

[Reg. No.]




5









 







General Counsel, Deputy General Counsel or an Associate General Counsel of Company (or
such other internal counsel to Company as shall be reasonably satisfactory to such Pass
Through Trustee) substantially in the form set forth in Exhibit A-1 and (ii) an
opinion addressed to it from Debevoise & Plimpton LLP substantially in the form set forth
in Exhibit A-2.




     (h) Opinion of Counsel to U.S. Bank, Loan Trustee, Pass Through Trustees and
Subordination Agent. Each such Pass Through Trustee and Loan Trustee shall have
received an opinion addressed to it from Shipman & Goodwin LLP, special counsel for U.S.
Bank, Loan Trustee, Pass Through Trustees and Subordination Agent, substantially in the
form set forth in Exhibit B.




     (i) Opinion of FAA Counsel. Each such Pass Through Trustee and Loan Trustee
shall have received an opinion addressed to it from Daugherty, Fowler, Peregrin, Haught &
Jenson, a Professional Corporation, special FAA counsel in Oklahoma City, Oklahoma,
substantially in the form set forth in Exhibit C.




     (j) Certification from Company. Each such Pass Through Trustee and Loan
Trustee shall have received a certificate or certificates signed by the chief financial or
accounting officer, any Senior Vice President, the Treasurer, any Vice President or any
Assistant Treasurer (or any other Responsible Officer) of Company, dated the Closing Date,
certifying as to the correctness of each of the matters stated in Section 3.01(f).




     (k) Certification from U.S. Bank, Loan Trustee and Subordination Agent. Each
such Pass Through Trustee shall have received a certificate from U.S. Bank in its
individual capacity and as Loan Trustee and Subordination Agent, as applicable, dated the
Closing Date, signed by an authorized officer of U.S. Bank in its individual capacity and
as Loan Trustee and Subordination Agent, as applicable, certifying for each such entity
that no Loan Trustee Liens or Other Party Liens attributable to it, as applicable, exist,
and further certifying as to the correctness of each of the matters stated in Section 5.01.




     (l) [Opinion of Special French Counsel. Each such Pass Through Trustee and
Loan Trustee shall have received an opinion addressed to it from Clifford Chance LLP,
special French counsel to Company, with respect to the French Pledge Agreement,
substantially in the form set forth in Exhibit G.]8
[Reserved.]9





 




			
	8	 	To be inserted for Airbus aircraft.
	 
	9	 	To be inserted for all aircraft other than
Airbus aircraft.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




6









 











     (m) Insurance Matters. Loan Trustee shall have received an insurance report
of an independent insurance broker and the related certificates of insurance, each in form
and substance reasonably satisfactory to Loan Trustee, as to the compliance with the terms
of Section 7.06 of the Indenture relating to insurance with respect to the Aircraft.




     (n) No Proceedings. No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or governmental agency, nor shall
any order, judgment or decree have been issued or proposed to be issued by any court or
governmental agency at the time of the Closing to set aside, restrain, enjoin or prevent
the completion and consummation of this Agreement or the transactions contemplated hereby.




     (o) Funding of Pass Through Trusts. Each such Pass Through Trustee shall have
received in immediately available funds an amount at least equal to the aggregate purchase
price of the Equipment Notes to be purchased from Company by such Pass Through Trustee.




     (p) [Manufacturer’s Consent. Loan Trustee shall have received an executed
copy of the Manufacturer’s Consent substantially in the form set forth in Exhibit
D.]10 [Reserved.]11




     (q) Governmental Approvals. 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 has 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 have been
issued.




     (r) Satisfaction of Requirements under the Note Purchase Agreement. The
conditions precedent set forth in Section 2 of the Note Purchase Agreement, and the
requirements set forth in Section 1 of the Note Purchase Agreement relating to the Aircraft
and the Equipment Notes, shall have been satisfied.



     Promptly upon the recording of the Indenture (with the Indenture Supplement attached) pursuant
to the Transportation Code and the receipt of appropriate and correct recording information from
the FAA, Company will cause Daugherty, Fowler, Peregrin, Haught & Jenson, a Professional
Corporation, special FAA counsel in Oklahoma City, Oklahoma to deliver to Subordination Agent, to
Pass Through Trustees, to Loan Trustee





 




			
	10	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	11	 	To be inserted for MD-90-30 aircraft.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




7









 









and to Company an opinion as to the due recording of such instrument and the lack of filing of
any intervening documents with respect to the Aircraft.




     Section 3.02. Conditions Precedent to Obligations of Company. The obligation of
Company to issue and sell the Equipment Notes is subject to the fulfillment (or waiver by Company)
prior to or on the Closing Date of the following conditions precedent:




     (a) No Changes in Law. No change shall have occurred after the date of this
Agreement in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation of law or
governmental regulations for Company to enter into any transaction contemplated by the
Operative Documents, the Note Purchase Agreement or the other Pass Through Documents.




     (b) Documentation. The documents referred to in Section 3.01(c) shall have
been duly authorized, executed and delivered by the respective party or parties thereto
(other than Company), shall be in full force and effect and executed counterparts (or
copies thereof where indicated) thereof shall have been delivered to Company, and Company
shall have received such documents and evidence with respect to U.S. Bank, the Liquidity
Provider of each Liquidity Facility in effect as of the Closing Date, Loan Trustee,
Subordination Agent and the Pass Through Trustee of each Pass Through Trust in existence as
of the Closing Date as Company reasonably requests in order to establish the consummation
of the transactions contemplated by this Agreement, the taking of all corporate and other
proceedings in connection therewith and compliance with the conditions herein set forth.




     (c) FAA Filing. The Indenture (with the Indenture Supplement covering the
Aircraft attached) shall have been duly filed for recordation (or shall be in the process
of being so duly filed for recordation) with the FAA pursuant to the Transportation Code.
The registration of the International Interests (or Prospective International Interests)
created under the Indenture (as supplemented by the Indenture Supplement with respect to
the Aircraft) shall have been effected on the International Registry in accordance with the
Cape Town Treaty.




     (d) Representations and Warranties. On the Closing Date, the representations
and warranties herein of U.S. Bank, Loan Trustee, Subordination Agent and the Pass Through
Trustee of each Pass Through Trust in existence as of the Closing Date shall be correct as
though made on and as of such date, except to the extent that such representations and
warranties relate solely to an earlier date (in which case such representations and
warranties shall have been correct on and as of such earlier date), and, insofar as such
representations and warranties concern U.S. Bank, Loan Trustee, Subordination Agent or any
Pass Through Trustee, such party shall have so certified to Company.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




8









 






     (e) Certain Opinions and Certificates. Company shall have received each
opinion referred to in Sections 3.01(h) [and][,] 3.01(i) [and 3.01(l)]12, each
such opinion addressed to Company or accompanied by a letter from the counsel rendering
such opinion authorizing Company to rely on such opinion as if it were addressed to
Company, and the certificates referred to in Sections 3.01(e)(iv) and 3.01(k).




     (f) Certain Opinion of Special Delaware Counsel. Company shall have received
opinions addressed to it from Richards, Layton & Finger P.A., special Delaware counsel for
the Pass Through Trustee of each Pass Through Trust in existence as of the Closing Date,
substantially in the forms set forth in Exhibit E-1, as to tax matters, and Exhibit E-2, as
to UCC matters.




     (g) No Proceedings. No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or governmental agency, nor shall
any order, judgment or decree have been issued or proposed to be issued by any court or
governmental agency at the time of the Closing to set aside, restrain, enjoin or prevent
the completion and consummation of this Agreement or the transactions contemplated hereby.




     (h) No Other Party Liens, etc. Company shall have received a certificate from
U.S. Bank dated the Closing Date, signed by an authorized officer of U.S. Bank, certifying
for the Pass Through Trustee of each Pass Through Trust in existence as of the Closing Date
that no Other Party Liens attributable to it exist and further certifying as to the
correctness of each of the matters stated in Section 5.01.




     (i) Payment for Equipment Notes. Company shall have been paid by the Pass
Through Trustee for each Pass Through Trust in existence as of the Closing Date the
aggregate original principal amount of the Equipment Notes being issued to such Pass
Through Trustee as set forth on Schedule I opposite the name of such Pass Through Trust.





 




			
	12	 	To be inserted for Airbus aircraft.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




9









 










ARTICLE 4




REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF COMPANY



     Section 4.01. Representations and Warranties of Company. Company represents and
warrants that:




     (a) Organization; Authority; Qualification. Company is a corporation duly
incorporated and validly existing in good standing under the laws of the State of Delaware,
is a Certificated Air Carrier, is a Citizen of the United States, has the corporate power
and authority to own its properties or hold them under lease and to enter into and perform
its obligations under the Operative Documents to which it is a party and is duly qualified
to do business as a foreign corporation in good standing in each other jurisdiction in
which the failure to so qualify would have a material adverse effect on the consolidated
financial condition of Company and its subsidiaries, considered as a whole, and its
jurisdiction of organization (as such term is used in Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware) is Delaware.




     (b) Corporate Action and Authorization; No Violations. The execution,
delivery and performance by Company of this Agreement and the other Operative Documents to
which Company is a party have been duly authorized by all necessary corporate action on the
part of Company, do not require any stockholder approval or approval or consent of any
trustee or holder of any indebtedness or obligations of Company, except such as have been
duly obtained and are in full force and effect, and do not contravene any law, governmental
rule, regulation, judgment or order binding on Company or the certificate of incorporation
or by-laws of Company or contravene or result in a breach of, or constitute a default
under, or result in the creation of any Lien (other than as permitted under the Indenture)
upon the property of Company under, any material indenture, mortgage, contract or other
agreement to which Company is a party or by which it or any of its properties may be bound
or affected.




     (c) Governmental Approvals. Neither the execution and delivery by Company of
this Agreement and the other Operative Documents to which it is a party, nor the
consummation by Company of any of the transactions contemplated hereby or thereby, requires
the authorization, consent or approval of, the giving of notice to, the filing or
registration with or the taking of any other action in respect of, the Department of
Transportation, the FAA or any other federal or state governmental authority or agency, or
the International Registry, except for (i) the registration of the issuance and
sale of the Pass Through Certificates under the Securities Act and under the securities
laws of any state or other jurisdiction in which the Pass Through Certificates may be
offered for sale if the laws of such state or other jurisdiction require such action,
(ii) the qualification of the Pass


 Participation Agreement (2010-2 EETC)

[Reg. No.]




10









 







Through Trust Agreements under the Trust Indenture Act, (iii) the orders,
permits, waivers, exemptions, authorizations and approvals of the regulatory authorities
having jurisdiction over Company’s ownership or operation of the Aircraft required to be
obtained on or prior to the Closing Date, which orders, permits, waivers, exemptions,
authorizations and approvals have been duly obtained and are, or on the Closing Date will
be, in full force and effect, (iv) the filings and registrations referred to in
Section 4.01(e), (v) authorizations, consents, approvals, notices and filings
required to be obtained, taken, given or made under securities or Blue Sky or similar laws
of the various states and foreign jurisdictions and (vi) consents, approvals,
notices, registrations and other actions required to be obtained, given, made or taken only
after the date hereof.




     (d) Valid and Binding Agreements. This Agreement and each other Operative
Document to which Company is a party have been duly executed and delivered by Company and
constitute the legal, valid and binding obligations of Company enforceable against Company
in accordance with their terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity and except, in the case of the
Indenture, as limited by applicable laws that may affect the remedies provided in the
Indenture, which laws, however, do not make the remedies provided in the Indenture
inadequate for the practical realization of the rights and benefits intended to be provided
thereby.




     (e) Filings and Recordation. Except for (i) the filing for
recordation pursuant to the Transportation Code of the Indenture (with the Indenture
Supplement covering the Aircraft attached), (ii) with respect to the security
interests created by such documents, the filing of financing statements (and continuation
statements at periodic intervals) under the Uniform Commercial Code of Delaware, and
(iii) the registration on the International Registry of the International Interests
(or Prospective International Interests) created under the Indenture (as supplemented by
the Indenture Supplement covering the Aircraft), no further filing or recording of any
document is necessary under the laws of the United States or any state thereof as of the
Closing Date in order to establish and perfect the security interest in the Aircraft
created under the Indenture in favor of Loan Trustee as against Company and any third
parties in any applicable jurisdiction in the United States.




     (f) Investment Company Act. Company is not required to be registered as an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.




     (g) Title. As of the Closing Date, (i) Company has good title to the
Aircraft, free and clear of Liens other than Permitted Liens, (ii) the Aircraft has
been duly certificated by the FAA as to type and airworthiness in accordance with


 Participation Agreement (2010-2 EETC)

[Reg. No.]




11









 







the terms of the Indenture, (iii) the Indenture (with the Indenture Supplement
covering the Aircraft attached) has been duly filed for recordation (or shall be in the
process of being so duly filed for recordation) with the FAA pursuant to the Transportation
Code, (iv) the Aircraft is duly registered with the FAA in the name of Company, and
(v) the registration of the International Interests (or Prospective International
Interests) created under the Indenture (as supplemented by the Indenture Supplement with
respect to the Aircraft) shall have been effected on the International Registry in
accordance with the Cape Town Treaty.




     (h) Section 1110. Loan Trustee is entitled to the benefits of Section 1110
with respect to the Aircraft being subjected to the Lien of the Indenture on the Closing
Date.




     (i) Security Interest. The Indenture creates in favor of Loan Trustee, for
the benefit of Noteholders, Indenture Indemnitees and Related Indenture Indemnitees, a
valid and perfected Lien on the Aircraft purported to be subjected to the Lien of the
Indenture on the Closing Date, subject to no equal or prior Lien, except Permitted Liens.




     (j) Licenses, Permits and Franchises. Company holds all licenses, permits and
franchises from the appropriate government entities necessary to authorize Company lawfully
to 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 have a material adverse effect on the financial condition or operations
of Company and its consolidated subsidiaries, taken as a whole.



     Section 4.02. General Indemnity. (a) Claims Defined. For the purposes of
this Section 4.02, “Claims” means any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs or expenses of whatsoever kind and nature (whether or not
on the basis of negligence, strict or absolute liability or liability in tort) that may be imposed
on, incurred by, suffered by or asserted against an Indemnitee, as defined below, and, except as
otherwise expressly provided in this Section 4.02, includes all reasonable out-of-pocket costs,
disbursements and expenses (including reasonable out-of-pocket legal fees and expenses) actually
incurred by an Indemnitee in connection therewith or related thereto.




     (b) Indemnitee Defined. For the purposes of this Section 4.02,
“Indemnitee” means (i) U.S. Bank and Loan Trustee, (ii) each
separate or additional trustee appointed pursuant to Section 8.02 of the Indenture,
(iii) so long as it holds any Equipment Notes as agent and trustee of any Pass
Through Trustee, Subordination Agent (iv) so long as it is the holder of any
Equipment Notes, each Pass Through Trustee, (v) each Liquidity Provider,
(vi) any Related Noteholder, (vii) the Escrow Agent, (viii) the
Paying Agent and (ix) each of their


 Participation Agreement (2010-2 EETC)

[Reg. No.]




12









 







respective successors and permitted assigns in such capacities, agents, servants,
officers, employees and directors (the respective agents, servants, officers, employees and
directors of each of the foregoing Indemnitees, as applicable, together with such
Indemnitee, collectively the “Related Indemnitee Group” of such Indemnitee);
provided that such Persons, to the extent they are not signatories to this
Agreement, have expressly agreed in writing to be bound by the terms of this Section 4.02
prior to, or concurrently with, the making of a Claim. If any Indemnitee fails to comply
with any duty or obligation under this Section 4.02 with respect to any Claim, such
Indemnitee shall not be entitled to any indemnity with respect to such Claim under this
Section 4.02 to the extent such failure was prejudicial to Company. No holder of a Pass
Through Certificate in its capacity as such holder shall be an Indemnitee.




     (c) Claims Indemnified. Subject to the exclusions stated in Section 4.02(d),
Company agrees to indemnify, protect, defend and hold harmless on an After-Tax Basis each
Indemnitee against Claims resulting from or arising out of (a) the Operative
Documents or the enforcement of any of the terms of the Operative Documents, (b)
the Aircraft, the Airframe, any Engine or any Part, including, without limitation, with
respect thereto, (i) the sale, purchase, acceptance, non-acceptance or rejection of
the Aircraft under the Purchase Agreement or the ownership, possession, use, non-use,
substitution, airworthiness, control, maintenance, repair, operation, registration,
re-registration, de-registration, delivery, non-delivery, assignment, abandonment,
condition, sale, lease, sublease, storage, modification, alteration, return, transfer or
other disposition of the Aircraft, the Airframe, any Engine or any Part (including, without
limitation, latent or other defects, whether or not discoverable, and any claim for patent,
trademark or copyright infringement) by Company, any Permitted Lessee or any other Person,
(ii) tort liability, whether or not arising out of the negligence of any Indemnitee
(whether active, passive or imputed), (iii) death or property damage of passengers,
shippers or others, and (iv) environmental control, noise or pollution, and
(c) the offer, sale or delivery of any Equipment Notes, Pass Through Certificates
or any interest therein or represented thereby. Without limiting the foregoing and subject
to, and without duplication of, the provisions of Section 6.01(a), Company agrees to pay
the reasonable ongoing fees, and the reasonable out-of-pocket costs and expenses actually
incurred (including, without limitation, reasonable attorney’s fees and disbursements
actually incurred and, to the extent payable as provided in the Indenture, reasonable
compensation and expenses of Loan Trustee’s agents actually incurred), of Loan Trustee in
connection with the transactions contemplated hereby.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




13









 






     (d) Claims Excluded. The following are excluded from Company’s agreement to
indemnify an Indemnitee under this Section 4.02:




     (i) any Claim to the extent such Claim is attributable to acts or events
occurring after (A) the Lien of the Indenture has been discharged, or
(B) the transfer of possession of the Aircraft pursuant to Article IV of
the Indenture except to the extent that such Claim is attributable to acts
occurring in connection with the exercise of remedies pursuant to Section 4.02 of
the Indenture following the occurrence and continuance of an Event of Default;




     (ii) any Claim to the extent such Claim is, or is attributable to, a Tax (or
loss of any Tax benefit), except with respect to paying indemnity amounts on an
After-Tax Basis;




     (iii) any Claim to the extent such Claim is attributable to the negligence or
willful misconduct of such Indemnitee or such Indemnitee’s Related Indemnitee
Group;




     (iv) any Claim to the extent such Claim is attributable to the noncompliance
by such Indemnitee or such Indemnitee’s Related Indemnitee Group with any of the
terms of, or any misrepresentation by an Indemnitee or its Related Indemnitee Group
contained in, this Agreement, any other Operative Document or any Pass Through
Document to which such Indemnitee or any of such Related Indemnitee Group is a
party or any agreement relating hereto or thereto;




     (v) any Claim to the extent such Claim constitutes a Permitted Lien
attributable to such Indemnitee;




     (vi) any Claim to the extent such Claim is attributable to the offer, sale,
assignment, transfer, participation or other disposition (whether voluntary or
involuntary) by or on behalf of such Indemnitee or its Related Indemnitee Group
(other than during the occurrence and continuance of an Event of Default;
provided that any such offer, sale, assignment, transfer, participation or
other disposition during the occurrence and continuation of an Event of Default
shall not be subject to indemnification unless it is made in accordance with the
Indenture and applicable law) of any Equipment Note or interest therein or Pass
Through Certificate, all or any part of such Indemnitee’s interest in the Operative
Documents or the Pass Through Documents, or any interest in the Collateral or any
similar security;


 Participation Agreement (2010-2 EETC)

[Reg. No.]




14









 






     (vii) any Claim to the extent such Claim is attributable to (A) a
failure on the part of Loan Trustee to distribute in accordance with this Agreement
or any other Operative Document any amounts received and distributable by it
hereunder or thereunder, (B) a failure on the part of Subordination Agent
to distribute in accordance with the Intercreditor Agreement any amounts received
and distributable by it thereunder, (C) a failure on the part of any Pass
Through Trustee to distribute in accordance with the Pass Through Trust Agreement
to which it is a party any amounts received and distributable by it thereunder,
(D) a failure on the part of Escrow Agent to distribute in accordance with
any Escrow Agreement any amounts received and distributable by it thereunder,
(E) a failure on the part of Paying Agent to distribute in accordance with
any Escrow Agreement any amounts received and distributable by it thereunder or
(F) a failure on the part of Depositary to pay funds payable by it in
accordance with any Deposit Agreement;




     (viii) any Claim to the extent such Claim is attributable to the authorization
or giving or withholding of any future amendments, supplements, waivers or consents
with respect to any Operative Document or any Pass Through Document, other than
such as have been requested by Company or that occur as the result of an Event of
Default, or such as are expressly required or contemplated by the provisions of the
Operative Documents or the Pass Through Documents;




     (ix) any Claim to the extent such Claim is payable or borne by (A)
Company pursuant to any indemnification, compensation or reimbursement provision of
any other Operative Document or any Pass Through Document or (B) a Person
other than Company pursuant to any provision of any Operative Document or any Pass
Through Document;




     (x) any Claim to the extent such Claim is an ordinary and usual operating or
overhead expense or not an out-of-pocket expense actually incurred;




     (xi) any Claim to the extent such Claim is incurred on account of or asserted
as a result of any “prohibited transaction” within the meaning of Section 406 of
ERISA or Section 4975 of the Code;




     (xii) any Claim to the extent such Claim is attributable to one or more of the
other aircraft financed through the offering of Pass Through Certificates (in the
event of doubt, any Claim shall be allocated between the Aircraft and such other
aircraft in the same proportion that the then outstanding Equipment Notes bear to
the then outstanding equipment


 Participation Agreement (2010-2 EETC)

[Reg. No.]




15









 







notes issued with respect to the other aircraft and held by Pass Through
Trustees);




     (xiii) any Claim to the extent such Claim is attributable to any amount which
any Indemnitee expressly agrees shall not be paid by, borne by, or reimbursed by
Company;




     (xiv) any Claim by an Indemnitee related to the status of such Indemnitee as a
passenger or shipper on any of Company’s aircraft or as a party to a marketing or
promotional or other commercial agreement with Company unrelated to the
transactions contemplated by the Operative Documents; and




     (xv) any Claim to the extent such Claim is attributable to the offer or sale
by an Indemnitee (or any member of such Indemnitee’s Related Indemnitee Group) 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 Company of any of its affiliates).




     (e) Insured Claims. In the case of any Claim indemnified by Company hereunder
that is covered by a policy of insurance maintained by Company, each Indemnitee agrees to
cooperate, at Company’s expense, with the insurers in the exercise of their rights to
investigate, defend and compromise such Claim.




     (f) Claims Procedure. An Indemnitee shall promptly notify Company of any
Claim as to which indemnification is sought. The failure to provide such prompt notice
shall not release Company from any of its obligations to indemnify hereunder except to the
extent that Company is prejudiced by such failure or Company’s indemnification obligations
are increased as a result of such failure (in which event Company shall not be responsible
for such additional indemnification obligations). Such Indemnitee shall promptly submit to
Company all additional information in such Indemnitee’s possession to substantiate such
Claim as Company reasonably requests. Subject to the rights of Company’s insurers, Company
may, at its sole cost and expense, investigate any Claim, and may in its sole discretion
defend or compromise any Claim. At Company’s expense, any Indemnitee shall cooperate with
all reasonable requests of Company in connection therewith. Such Indemnitee shall not enter
into a settlement or other compromise with respect to any Claim without the prior written
consent of Company, which consent shall not be unreasonably withheld or delayed, unless
such Indemnitee waives its right to be indemnified with respect to such Claim. Where
Company or its insurers undertake the defense of an Indemnitee with


 Participation Agreement (2010-2 EETC)

[Reg. No.]




16









 







respect to a Claim, no additional legal fees or expenses of such Indemnitee in
connection with the defense of such Claim shall be indemnified hereunder unless such fees
or expenses were incurred at the written request of Company or such insurers. Subject to
the requirements of any policy of insurance, an Indemnitee may participate at its own
expense in any judicial proceeding controlled by Company pursuant to the preceding
provisions; provided that such party’s participation does not, in the opinion of
outside counsel appointed by Company or its insurers to conduct such proceedings, interfere
with such control. Such participation shall not constitute a waiver of the indemnification
provided in this Section 4.02. Notwithstanding anything to the contrary contained herein,
Company shall not under any circumstances be liable for the fees and expenses of more than
one counsel for all Indemnitees with respect to any one Claim. Notwithstanding anything to
the contrary contained herein, an Indemnitee shall not under any circumstances be required
or deemed to be required to contest any Claim or to assume responsibility for or control of
any judicial proceeding with respect thereto. Company will provide the relevant Indemnitee
with such information not within the control of such Indemnitee, as is in Company’s control
or is reasonably available to Company, which such Indemnitee may reasonably request and
will otherwise cooperate with such Indemnitee so as to enable such Indemnitee to fulfill
its obligations under this Section.




     (g) Subrogation. To the extent that a Claim is in fact paid in full by
Company or its insurer, Company or such insurer (as the case may be) shall, without any
further action, be subrogated to the rights and remedies of the Indemnitee on whose behalf
such Claim was paid with respect to the transaction or event giving rise to such Claim.
Such Indemnitee shall give such further assurances or agreements and shall cooperate with
Company or such insurer, as the case may be, to permit Company or such insurer to pursue
such rights and remedies, if any, to the extent reasonably requested by Company. So long as
no Event of Default has occurred and is continuing, if an Indemnitee receives any payment,
in whole or in part, from any party other than Company or its insurers with respect to any
Claim paid by Company or its insurers, it shall promptly pay over to Company the amount
received (but not an amount in excess of the amount Company or any of its insurers has paid
in respect of such Claim). Any amount referred to in the preceding sentence that is payable
to Company shall not be paid to Company, or, if it has been previously paid directly to
Company, shall not be retained by Company, if at the time of such payment an Event of
Default has occurred and is continuing, but shall be paid to and held by Loan Trustee as
security for the obligations of Company under the Operative Documents. If Company agrees,
such amount payable shall be applied against Company’s obligations thereunder when and as
they become due and payable. At such time as such Event of Default is no longer continuing,
such amount, to the extent not previously so applied against Company’s obligations, shall
be paid to Company.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




17









 






     (h) No Guaranty. Nothing set forth in this Section 4.02 constitutes a
guarantee by Company that the Aircraft at any time will have any particular value, useful
life or residual value.




     (i) Payments; Interest. Any amount payable to any Indemnitee on account of a
Claim shall be paid within 30 days after receipt by Company of a written demand therefor
from such Indemnitee accompanied by a written statement describing in reasonable detail the
Claims that are the subject of and basis for such indemnity and the computation of the
amount payable. Any payments made pursuant to this Section 4.02 directly to an Indemnitee
or to Company, as the case may be, shall be made in immediately available funds at such
bank or to such account as is specified by the payee in written directions to the payor or,
if no such directions are given, by check of the payor payable to the order of the payee
and mailed to the payee by certified mail, return receipt requested, postage prepaid to its
address referred to in Section 7.01. To the extent permitted by applicable law, interest at
the Past Due Rate shall be paid, on demand, on any amount or indemnity not paid when due
pursuant to this Section 4.02 until the same is paid. Such interest shall be paid in the
same manner as the unpaid amount in respect of which such interest is due.




     (j) Tax Deduction or Credit. If, by reason of any payment made to or for the
account of any Indemnitee by Company, or by reason of any Claim of any Indemnitee paid or
indemnified against by Company, in each case pursuant to Section 4.02, such Indemnitee
realizes a Tax deduction or credit not previously taken into account in computing such
payment, such Indemnitee shall promptly pay to Company an amount equal to the sum of
(i) the actual reduction in Taxes realized by such Indemnitee which is attributable
to such deduction or credit, and (ii) the actual reduction in Taxes realized by
such Indemnitee as a result of any payment made by such Indemnitee pursuant to this
sentence; provided that the amount payable by such Indemnitee pursuant to this
sentence shall not exceed the sum of all amounts previously paid by Company to such
Indemnitee pursuant to this Section 4.02; provided, further, that any such
excess shall be carried forward and applied to reduce pro tanto any subsequent obligations
of Company to make payments to such Indemnitee pursuant to Section 4.02. If such Tax
deduction or credit is subsequently disallowed or lost, upon written notice from the
Indemnitee Company shall promptly repay all amounts paid to it pursuant to this Section
4.02(j) in respect of such disallowed or lost deduction or credit. If, at the time an
amount would otherwise be payable to Company under this Section 4.02(j), any Event of
Default shall have occurred and be continuing, such amount shall be held by the relevant
Indemnitee as security for the obligations of Company under the Operative Documents. At
such time as no Event of Default is continuing, such amount or portion thereof shall be
applied to offset Company’s outstanding


 Participation Agreement (2010-2 EETC)

[Reg. No.]




18









 







obligations under the Operative Documents and any remaining amount after such
application shall be paid to Company.



ARTICLE 5




REPRESENTATIONS, WARRANTIES AND COVENANTS OF U.S. BANK



     Section 5.01. Representations, Warranties and Covenants of U.S. Bank. U.S. Bank,
generally, and each of Loan Trustee, Subordination Agent and the Pass Through Trustee under each of
the Pass Through Trust Agreements in effect on the date hereof as it relates to it, represents,
warrants and covenants that:




     (a) Organization; Authority. U.S. Bank is a national banking association duly
organized and validly existing in good standing under the laws of the United States, is
eligible to be Loan Trustee under Section 8.01(a) of the Indenture, will promptly comply
with Section 8.01(a) of the Indenture and has full power, authority and legal right to
enter into and perform its obligations under each of the Operative Documents and the Pass
Through Documents to which U.S. Bank, Loan Trustee, Subordination Agent or such Pass
Through Trustee is a party and, in its capacity as Loan Trustee and Pass Through Trustee,
respectively, to authenticate the Equipment Notes and the Pass Through Certificates,
respectively. U.S. Bank is qualified to act as Loan Trustee under Section 8.01(c) of the
Indenture. U.S. Bank is a Citizen of the United States (without the use of a voting trust
agreement), and will resign as Loan Trustee under the Indenture promptly after it obtains
actual knowledge that it has ceased to be such a Citizen of the United States.




     (b) Due Authorization; No Violations. The execution, delivery and performance
by U.S. Bank, individually or in its capacity as Loan Trustee, Subordination Agent or such
Pass Through Trustee, as the case may be, of this Agreement, each of the other Operative
Documents and each of the Pass Through Documents to which U.S. Bank, Loan Trustee,
Subordination Agent or such Pass Through Trustee is a party, the performance by U.S. Bank,
individually or in its capacity as Loan Trustee, Subordination Agent or such Pass Through
Trustee, as the case may be, of its obligations thereunder and the consummation on the
Closing Date or the Issuance Date, as the case may be, of the transactions contemplated
thereby, and the authentication of the Equipment Notes and the Pass Through Certificates,
respectively, to be delivered on the Closing Date or the Issuance Date, as the case may be:
(i) have been duly authorized by all necessary action on the part of U.S. Bank,
Loan Trustee, Subordination Agent and such Pass Through Trustee, as the case may be,
(ii) do not violate any law or regulation of the United States or of the state of
the United States in which U.S. Bank is located and which governs the banking and trust
powers of U.S. Bank or any order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable


 Participation Agreement (2010-2 EETC)

[Reg. No.]




19









 







to U.S. Bank, Loan Trustee, Subordination Agent or such Pass Through Trustee or any of
their assets, (iii) will not violate any provision of the articles of association
or by-laws of U.S. Bank and (iv) will not violate any provision of, or constitute a
default under, any mortgage, indenture, contract, agreement or undertaking to which any of
U.S. Bank, Loan Trustee, Subordination Agent or such Pass Through Trustee is a party or by
which any of them or their respective properties may be bound or affected.




     (c) Approvals. Neither the execution and delivery by U.S. Bank, individually
or in its capacity as Loan Trustee, Subordination Agent or such Pass Through Trustee, as
the case may be, of this Agreement, any other Operative Document or any Pass Through
Document to which U.S. Bank, Loan Trustee, Subordination Agent or such Pass Through Trustee
is a party, nor the consummation by U.S. Bank, Loan Trustee, Subordination Agent or such
Pass Through Trustee of any of the transactions contemplated hereby or thereby, requires
the authorization, consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action in respect of, (i) any
governmental authority or agency of the United States or the state of the United States
where U.S. Bank is located and regulating the banking and trust powers of U.S. Bank or
(ii) any trustee or other holder of any debt of U.S. Bank.




     (d) Valid and Binding Agreements. This Agreement, each other Operative
Document and each Pass Through Document to which U.S. Bank, Loan Trustee, Subordination
Agent or such Pass Through Trustee is a party have been duly executed and delivered by U.S.
Bank, individually and in its capacity as Loan Trustee, Subordination Agent or such Pass
Through Trustee, as the case may be, and constitute the legal, valid and binding
obligations of U.S. Bank, Loan Trustee, Subordination Agent and such Pass Through Trustee,
as the case may be, enforceable against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles of equity.




     (e) No Loan Trustee Liens or Other Party Liens. It unconditionally agrees
with and for the benefit of the parties to this Agreement that it will not directly or
indirectly create, incur, assume or suffer to exist any Loan Trustee Lien or Other Party
Lien attributable to it, and it agrees that it will, at its own cost and expense, promptly
take such action as may be necessary to discharge and satisfy in full any such Lien.




     (f) Intercreditor Agreement. The Equipment Notes to be issued to
Subordination Agent pursuant hereto are being acquired by it to be held under the
Intercreditor Agreement.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




20









 






     (g) Funds Transfer Fees. Each of U.S. Bank, Loan Trustee, Subordination Agent
and such Pass Through Trustee agrees that it will not impose any lifting charge, cable
charge, remittance charge or any other charge or fee on any transfer by Company of funds
to, through or by U.S. Bank, Loan Trustee, Subordination Agent or such Pass Through Trustee
pursuant to this Agreement, any other Operative Document or any Pass Through Document,
except as may be otherwise agreed to in writing by Company.




     (h) Confidentiality. Each of U.S. Bank, Loan Trustee, Subordination Agent and
such Pass Through Trustee agrees to be bound by the terms of Section 10.16 of the
Indenture.




     (i) Certain Tax Matters. There are no Taxes payable by (i) U.S. Bank,
Loan Trustee or Subordination Agent imposed by the Commonwealth of Massachusetts or any
political subdivision or taxing authority thereof, or (ii) U.S. Bank or such Pass
Through Trustee imposed by the State of Delaware or any political subdivision or taxing
authority thereof, in connection with the execution, delivery or performance by U.S. Bank,
Loan Trustee or Subordination Agent on the one hand, or U.S. Bank or such Pass Through
Trustee, on the other, of any Operative Document or any Pass Through Document (other than
franchise or other taxes based on or measured by any fees or compensation received by any
such Person for services rendered in connection with the transactions contemplated by the
Operative Documents or the Pass Through Documents), and there are no Taxes payable by such
Pass Through Trustee imposed by the State of Delaware or any political subdivision thereof
in connection with the acquisition, possession or ownership by such Pass Through Trustee of
any of the Equipment Notes (other than franchise or other taxes based on or measured by any
fees or compensation received by such Pass Through Trustee for services rendered in
connection with the transactions contemplated by the Operative Documents or the Pass
Through Documents) and, assuming that the Pass Through Trusts in existence as of the
Closing Date will not be taxable for Federal income tax purposes as corporations, but,
rather, will be characterized for such purposes as grantor trusts or partnerships, such
Pass Through Trusts will not be subject to any Taxes imposed by the State of Delaware or
any political subdivision thereof.




     (j) Limitation on Situs of Activities. Except with the consent of Company,
which shall not be unreasonably withheld: (i) U.S. Bank will act as Pass Through
Trustee solely through its offices within the State of Delaware, except for such services
as may be performed for it by independent agents in the ordinary course of business, but
not directly by it, in other states; and (ii) U.S. Bank will act as Subordination
Agent and Loan Trustee solely through its offices within the Commonwealth of Massachusetts,
except for such services as may be performed for it by independent agents in the ordinary
course of business, but not directly by it, in other states.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




21









 






     (k) No Proceedings. There are no pending or, to its knowledge, threatened
actions or proceedings against U.S. Bank, Loan Trustee, Subordination Agent or such Pass
Through Trustee before any court or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially adversely affect the ability of
U.S. Bank, Loan Trustee, Subordination Agent or such Pass Through Trustee to perform its
obligations under any Operative Document or any Pass Through Document.




     (l) Other Representations. The representations and warranties contained in
Section 7.15 of the Basic Pass Through Trust Agreement and Section 7.04 of each Trust
Supplement are true, complete and correct as of the Closing Date.



ARTICLE 6




OTHER COVENANTS AND AGREEMENTS



     Section 6.01. Other Agreements. (a) Fees and Expenses. Company agrees
promptly to pay (without duplication of any other obligation Company may have to pay such amounts)
(1) the initial and annual fees and (to the extent Loan Trustee is entitled to be
reimbursed for its reasonable expenses) the reasonable expenses of Loan Trustee in connection with
the transactions contemplated hereby and (2) the following expenses incurred by Loan
Trustee, Subordination Agent and Pass Through Trustees in connection with the negotiation,
preparation, execution and delivery of this Agreement, the other Operative Documents and the other
documents or instruments referred to herein or therein:




     (i) the reasonable fees, expenses and disbursements of (A) Shipman &
Goodwin LLP, special counsel for Loan Trustee, Subordination Agent and the Pass
Through Trustees of the Pass Through Trusts in existence as of the Closing Date,
(B) Richards, Layton & Finger, P.A., special Delaware counsel for the Pass
Through Trustees of the Pass Through Trusts in existence as of the Closing Date and
Company, [and] (C) Daugherty, Fowler, Peregrin, Haught & Jenson, a
Professional Corporation, special FAA counsel in Oklahoma City, Oklahoma[ and
(D) Clifford Chance LLP, special French counsel]13, in each case
to the extent actually incurred; and




     (ii) all reasonable expenses actually incurred in connection with printing and
document production or reproduction expenses, and in





 




			
	13	 	To be inserted for Airbus aircraft.




 Participation Agreement (2010-2 EETC)

[Reg. No.]




22









 






connection with the filing of Uniform Commercial Code financing statements.




     (b) Continuing Registration and Re-Registration. Loan Trustee, Noteholders,
Subordination Agent and each Pass Through Trustee agree to execute and deliver, at
Company’s expense, all such documents and consents as Company reasonably requests for the
purpose of continuing the registration of the Aircraft at the FAA in Company’s name or for
the purpose of registering or maintaining any registration on the International Registry in
respect of the Aircraft. In addition, each of Loan Trustee, Subordination Agent, each Pass
Through Trustee and any other Noteholder agrees, for the benefit of Company, to cooperate
with Company in effecting any foreign registration of the Aircraft pursuant to Section
7.02(e) of the Indenture; provided that prior to any such change in the country of
registry of the Aircraft the conditions set forth in Section 7.02(e) of the Indenture are
met to the reasonable satisfaction of, or waived by, Loan Trustee.




     (c) Quiet Enjoyment. Each of U.S. Bank, Loan Trustee, Subordination Agent,
each Pass Through Trustee and any other Noteholder [and Class A Liquidity Provider (by
having entered into the Class A Liquidity Facility) agree, and, if a Class B Liquidity
Facility shall have been provided, Class B Liquidity Provider (by entering into such Class
B Liquidity Facility) shall be deemed to have agreed]14 [, Class A Liquidity
Provider (by having entered into the Class A Liquidity Facility) and Class B Liquidity
Provider (by having entered into the Class B Liquidity Facility) agree]15, that,
unless an Event of Default shall have occurred and be continuing, it shall not (and shall
not permit any Affiliate or other Person claiming by, through or under it to) take any
action contrary to, or otherwise in any way interfere with or disturb (and then only in
accordance with the Indenture), the quiet enjoyment of the use and possession of the
Aircraft, the Airframe, any Engine or any Part by Company or any transferee of any interest
in any thereof permitted under the Indenture.




     (d) No Noteholder Liens. Each Noteholder, including, without limitation,
Subordination Agent and each Pass Through Trustee, unconditionally agrees with and for the
benefit of the parties to this Agreement that it will not directly or indirectly create,
incur, assume or suffer to exist any Noteholder Liens, and such Noteholder agrees that it
will, at its own cost and expense, promptly take such action as may be necessary to
discharge and satisfy in full any such Noteholder Lien; and each Noteholder hereby agrees
to indemnify, protect,





 




			
	14	 	To insert if the Class B Liquidity Facility
has not been provided as of the Closing Date.
	 
	15	 	To insert if the Class B Liquidity Facility
has been provided as of the Closing Date.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




23









 











defend and hold harmless each Indemnitee and Company against claims in any way
resulting from or arising out of a breach by it of its obligations under this Section
6.01(d).




     (e) Agreement to be Bound; Transfer. By its acceptance of its Equipment
Notes, each Noteholder unconditionally agrees for the benefit of Company and Loan Trustee:
(i) to be bound by and to perform and comply with all of the terms of such
Equipment Notes, the Indenture and this Agreement applicable to such Noteholder and
(ii) that it will not transfer any Equipment Note (or any part thereof) to any
entity unless such transfer complies with and does not violate the Transportation Code, the
Securities Act (or require registration under such Act) or any other law (including,
without limitation, ERISA), and does not create a relationship that would be in violation
thereof, or result in a “prohibited transaction” under Section 4975 of the Code or require
qualification of an indenture under the Trust Indenture Act.




     (f) Tax Returns. Each Pass Through Trustee shall file any tax returns
required to be filed by the related Pass Through Trust and the Company shall pay the
Applicable Portion of any expenses relating thereto. The Company shall be responsible for
the Applicable Portion of any interest or penalties related to any Pass Through Trustee’s
failure to file any such tax returns required to be filed by the relevant Pass Through
Trust, except to the extent that such failure is attributable to the gross negligence or
willful misconduct of such Pass Through Trustee. For purposes of this Section 6.01(f), the
“Applicable Portion” of any amount shall equal such amount multiplied by a
fraction, the numerator of which shall be the sum of the then outstanding aggregate
principal amount of the Equipment Notes held by the relevant Pass Through Trustee, and the
denominator of which shall be the sum of the outstanding aggregate principal amount of all
“Equipment Notes” issued under each of the “Indentures” (in each case as defined in the
Intercreditor Agreement) held by such Pass Through Trustee.




     (g) No Petition. Each of Company, Loan Trustee, each Pass Through Trustee,
Subordination Agent and any other Noteholder covenants that (i) until one year and
one day after the Series A Equipment Notes have been paid in full, it shall not acquiesce,
petition or otherwise invoke or cause or join in invoking or causing the Class A Pass
Through Trust or any other Person to invoke the process of any governmental authority for
the purpose of commencing or sustaining a case (whether voluntary or not) against the Class
A Pass Through Trust under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Class A Pass Through Trust or any substantial part of its property or ordering the
winding-up or liquidation of the affairs of the Class A Pass Through Trust, (ii) if
any Series B Equipment Notes shall have been issued, until one year and one day after the
Series B Equipment Notes have been paid in full, it shall not acquiesce,


 Participation Agreement (2010-2 EETC)

[Reg. No.]




24









 







petition or otherwise invoke or cause or join in invoking or causing the Class B Pass
Through Trust or any other Person to invoke the process of any governmental authority for
the purpose of commencing or sustaining a case (whether voluntary or not) against the Class
B Pass Through Trust under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Class B Pass Through Trust or any substantial part of its property or ordering the
winding-up or liquidation of the affairs of the Class B Pass Through Trust, and
(iii) with respect to any Additional Series Equipment Notes, until one year and one
day after such Additional Series Equipment Notes have been paid in full, it shall not
acquiesce, petition or otherwise invoke or cause or join in invoking or causing the
Additional Series Pass Through Trust or any other Person to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case (whether
voluntary or not) against such Additional Series Pass Through Trust under any bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of such Additional Series Pass Through
Trust or any substantial part of its property or ordering the winding-up or liquidation of
the affairs of such Additional Series Pass Through Trust.



     Section 6.02. Certain Covenants of Company. Company covenants and agrees with Loan
Trustee as follows:




     (a) Further Assurances. On and after the Closing, Company will cause to be
done, executed, acknowledged and delivered such further acts, conveyances and assurances as
Loan Trustee reasonably requests for accomplishing the purposes of this Agreement and the
other Operative Documents; provided that any instrument or other document so
executed by Company will not expand any obligations or limit any rights of Company in
respect of the transactions contemplated by the Operative Documents.




     (b) Filing and Recordation of the Indenture; Registration of International
Interests. Company, at its expense, will cause the Indenture (with the Indenture
Supplement covering the Aircraft attached) to be promptly filed and recorded, or filed for
recording, with the FAA to the extent permitted under the Transportation Code and the rules
and regulations of the FAA thereunder. In addition, on or prior to the Closing Date,
Company will cause the registration of the International Interests (or Prospective
International Interests) created under the Indenture (as supplemented by the Indenture
Supplement with respect to the Aircraft) to be effected on the International Registry in
accordance with the Cape Town Treaty, and shall, as and to the extent applicable, consent
to such registration upon the issuance of a request for such consent by the International
Registry.


 Participation Agreement (2010-2 EETC)

[Reg. No.]




25









 






     (c) Maintenance of Filings. Company, at its expense, will take, or cause to
be taken, such action with respect to the recording, filing, re-recording and refiling of
the Indenture and any financing statements or other instruments as are necessary to
maintain, so long as the Indenture is in effect, the perfection of the security interests
created by the Indenture or will furnish Loan Trustee timely notice of the necessity of
such action, together with such instruments, in execution form, and such other information
as may be required to enable Loan Trustee to take such action. In addition, Company will
pay any and all recording, stamp and other similar taxes payable in the United States, and
in any other jurisdiction where the Aircraft is registered, in connection with the
execution, delivery, recording, filing, re-recording and refiling of the Indenture or any
such financing statements or other instruments. Company will notify Loan Trustee of any
change in its jurisdiction of organization (as such term is used in Article 9 of the
Uniform Commercial Code as in effect in the State of Delaware) promptly after making such
change or in any event within the period of time necessary under applicable law to prevent
the lapse of perfection (absent refiling) of financing statements filed under the Operative
Documents.




     (d) Maintenance of Corporate Existence. Company shall at all times maintain
its corporate existence except as permitted by Section 6.02(e).




     (e) Merger; Consolidation; Transfer of Substantially All Assets. Company shall
not consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets as an entirety to any Person, unless:




     (i) the successor or transferee entity shall, if and to the extent required
under Section 1110 in order that Loan Trustee continues to be entitled to any
benefits of Section 1110 with respect to the Aircraft, be a Citizen of the United
States and a Certificated Air Carrier and shall execute and deliver to Loan Trustee
an agreement containing the express assumption by such successor or transferee
entity of the due and punctual performance and observance of each covenant and
condition of the Operative Documents to which Company is a party to be performed or
observed by Company;




     (ii) if the Aircraft is, at the time, registered with the FAA or such Person
is located in a “Contracting State” (as such term is used in the Cape Town Treaty),
such Person makes such filings and recordings with the FAA pursuant to the Act and
registration under the Cape Town Treaty, or if the Aircraft is, at the time, not
registered with the FAA, such Person makes such filings and recordings with the
applicable aviation authority, as are necessary to evidence such consolidation,
merger, conveyance, transfer or lease;


 Participation Agreement (2010-2 EETC)

[Reg. No.]




26









 






     (iii) immediately after giving effect to such transaction, no Event of Default
shall have occurred and be continuing; and




     (iv) Company shall deliver to Loan Trustee and each Liquidity Provider a
certificate signed by a Responsible Officer of Company, and an opinion of counsel
(which may be the General Counsel, Deputy General Counsel or an Associate General
Counsel to Company), each stating that such consolidation, merger, conveyance,
transfer or lease and the assumption agreement mentioned in clause (i) above comply
with this Section 6.02(e) and that all conditions precedent herein relating to such
transaction have been complied with (except that such opinion need not cover the
matters referred to in clause (iii) above and may rely, as to factual matters, on a
certificate of an officer of Company) and, in the case of such opinion, that such
assumption agreement has been duly authorized, executed and delivered by such
successor Person and is enforceable against such successor Person in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of creditors
generally and by general principles of equity.




     Upon any consolidation or merger, or any conveyance, transfer or lease of
substantially all of the assets of Company as an entirety in accordance with this Section
6.02(e), the successor Person formed by such consolidation or into which Company is merged
or to which such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, Company under this Agreement and the other
Operative Documents with the same effect as if such successor Person had been named as
Company herein.




     (f) Section 1110. Company shall remain a Certificated Air Carrier for as long
as and to the extent required under Section 1110 in order that Loan Trustee shall be
entitled to any of the benefits of Section 1110 with respect to the Aircraft.




     (g) Additional Information. Promptly after the occurrence of a Triggering
Event or an Indenture Event of Default resulting from the failure of Company to make
payments on any Equipment Note and on every Regular Distribution Date while the Triggering
Event or such Indenture Event of Default shall be continuing, Company will, at the
Subordination Agent’s request from time to time but in any event no more frequently than
once every three months, provide to the Subordination Agent a statement setting forth the
following information with respect to the Aircraft if then subject to the lien of the
Indenture: (A) whether the Aircraft is currently in service or parked in storage,
(B) the maintenance status of the Aircraft, and (C) the location of the
Engines. As used in this Section 6.02(g), the terms “Triggering Event”, “Indenture Event
of


 Participation Agreement (2010-2 EETC)

[Reg. No.]




27









 







Default” and “Regular Distribution Date” shall have the respective meanings set forth
in the Intercreditor Agreement.



ARTICLE 7




MISCELLANEOUS



     Section 7.01. Notices. Unless otherwise expressly specified or permitted by the terms
hereof, all notices required or permitted under the terms and provisions of this Agreement shall be
in English and in writing, and any such notice may be given by United States mail, courier service
or facsimile, and any such notice shall be effective when delivered (or, if mailed, three Business
Days after deposit, postage prepaid, in the first class United States mail, and if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a telephone call to a
representative of the recipient or by machine confirmation) that such transmission was received)
addressed as follows:


if to Company, addressed to:



Delta Air Lines, Inc.

1030 Delta Boulevard

Atlanta, Georgia 30354

Attention: Treasurer, Dept. 856

Telephone: (404) 715-6583

Facsimile: (404) 773-7345



with a copy to the General Counsel at the same address, but Dept. 971



Telephone: (404) 715-7820

Facsimile: (404) 715-7882



if to any Pass Through Trustee, addressed to:



U.S. Bank Trust National Association

300 Delaware Avenue, 9th Floor

Mail Code EX-DE-WDAW

Wilmington, Delaware 19801

Attention: Corporate Trust Services

Ref.: Delta 2010-2 EETC

Telephone: (302) 576-3703

Facsimile: (302) 576-3717



with a copy to:




 Participation Agreement (2010-2 EETC)

[Reg. No.]




28









 







U.S. Bank Trust National Association

One Federal Street

EX-MA-FED, 3rd Floor

Boston, Massachusetts 02110

Attention: Corporate Trust Services

Ref.: Delta 2010-2 EETC

Telephone: (617) 603-6553

Facsimile: (617) 603-6683



if to U.S. Bank, Loan Trustee or Subordination Agent, addressed to:



U.S. Bank Trust National Association

One Federal Street, 3rd Floor

Boston, Massachusetts 02110

Attention: Corporate Trust Administration

Ref.: Delta 2010-2 EETC

Telephone: (617) 603-6553

Facsimile: (617) 603-6683



or if to any subsequent Noteholder, addressed to such Noteholder at its address set forth in the
Equipment Note Register maintained pursuant to Section 2.07 of the Indenture.




     Any party, by notice to the other parties hereto, may designate different addresses for
subsequent notices or communications. Whenever the words “notice” or “notify” or similar words are
used herein, they mean the provision of formal notice as set forth in this Section 7.01.



     Section 7.02. Survival of Representations, Warranties, Indemnities, Covenants and
Agreements. Except as otherwise provided herein, the representations, warranties, indemnities,
covenants and agreements of Company, U.S. Bank, Loan Trustee, Subordination Agent, each Pass
Through Trustee and Noteholders herein, and each of their obligations hereunder, shall survive the
making of the loans, the transfer of any interest by any Noteholder of its Equipment Note and the
expiration or termination (to the extent arising out of acts or events occurring prior to such
expiration) of any Operative Documents.



     Section 7.03. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.



 Participation Agreement (2010-2 EETC)

[Reg. No.]




29











 





     Section 7.04. Severability. To the extent permitted by applicable law, any
provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 7.05. No Oral Modifications or Continuing Waivers; Consents. Subject to
Section 9.03 of the Indenture, no terms or provisions of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by the party against
which the enforcement of the change, waiver, discharge or termination is sought. No such change,
waiver, discharge or termination shall be effective unless a signed copy thereof is delivered to
Loan Trustee.



     Section 7.06. Effect of Headings and Table of Contents. The headings of the various
Articles and Sections herein and in the Table of Contents are for convenience of reference only and
do not define or limit any of the terms or provisions hereof.



     Section 7.07. Successors and Assigns. All covenants, agreements, representations and
warranties in this Agreement by Company, by U.S. Bank, individually or as Loan Trustee,
Subordination Agent or Pass Through Trustee, or by any Noteholder, shall bind and inure to the
benefit of and be enforceable by Company, and subject to the terms of Section 6.02(e), its
successors and permitted assigns, each Pass Through Trustee and any successor or other trustee
under the Pass Through Trust Agreement to which it is a party, Subordination Agent and its
successor under the Intercreditor Agreement and Loan Trustee and its successor under the Indenture,
whether so expressed or not.



     Section 7.08. Benefits of Agreement. Subject to the next sentence, nothing in this
Agreement, express or implied, gives to any Person, other than the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or claim under this
Agreement, except as expressly provided herein. Company agrees and acknowledges that each Liquidity
Provider, and each separate or additional trustee appointed pursuant to Section 8.02 of the
Indenture shall be third party beneficiaries of the covenants and agreements of Company with
respect to the indemnities contained in Section 4.02 and may rely on the covenants and agreements
of Company with respect to such indemnities to the same extent as if the covenants and agreements
of Company with respect to such indemnities were made to each Liquidity Provider directly.



     Section 7.09. Counterparts. This Agreement may be executed in any number of
counterparts. Each of the parties hereto shall not be required to execute the same counterpart.
Each counterpart of this Agreement including a signature page or pages executed by each of the
parties hereto shall be an original counterpart of this Agreement, but all of such counterparts
shall together constitute one instrument.



Participation Agreement (2010-2 EETC)

[Reg. No.]




30









 








     Section 7.10. Submission to Jurisdiction. Each of the parties hereto, to the extent
it may do so under applicable law, for purposes hereof and of all other Operative Documents hereby
(a) irrevocably submits itself to the non-exclusive jurisdiction of the courts of the State
of New York sitting in the City of New York and to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York, for the purposes of any suit, action
or other proceeding arising out of this Agreement, the subject matter hereof or any of the
transactions contemplated hereby brought by any party or parties hereto or thereto, or their
successors or permitted assigns and (b) waives, and agrees not to assert, by way of motion,
as a defense, or otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof or any of the transactions
contemplated hereby may not be enforced in or by such courts.



     Section 7.11. 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, including, without limitation, making or consenting to registrations (or discharges
thereof, as appropriate) with respect to the Indenture on the International Registry and appointing
Daugherty, Fowler, Peregrin, Haught & Jenson, a Professional Corporation, as its “professional user
entity” (as defined in the Cape Town Treaty) to make or consent to any registrations (or discharges
thereof, as appropriate) on the International Registry with respect to the Airframe or any Engine,
in any case, as any other party hereto shall reasonably request in connection with the
administration of, or to carry out more effectively the purposes of, or to better assure and
confirm into such other party the rights and benefits to be provided under this Agreement, the
other Operative Documents and the Pass Through Documents.



     Section 7.12. Section 1110. It is the intention of each of Company, Noteholders (such
intention being evidenced by each of their acceptance of an Equipment Note), Loan Trustee and other
parties hereto that the security interest created by the Indenture, to the fullest extent available
under applicable law, entitles the Loan Trustee, on behalf of the Noteholders, to all of the
benefits of Section 1110 with respect to the Aircraft, Airframe, Engines and Parts.



Participation Agreement (2010-2 EETC)

[Reg. No.]





31









 








     IN WITNESS WHEREOF, the parties hereto have caused this Participation Agreement to be duly
executed by their respective officers thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	 	DELTA AIR LINES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

as Pass Through Trustee under each of 

the Pass Through Trust Agreements in effect

as of the date hereof

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

as Subordination Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION, 

as Loan Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page




Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








	 	 	 	 	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

in its individual capacity as set forth herein

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Participation Agreement (2010-2 EETC)

[Reg. No.]


2









 






	 	 	 	 	 



SCHEDULE I to

PARTICIPATION AGREEMENT




EQUIPMENT NOTES,

PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS16




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Description of	 	 	 	 	 	 	 	 	 	 	 
	 	 	Equipment	 	 	 	 	 	 	Interest	 	 	Original Principal	 
	Purchaser	 	Notes	 	 	Maturity17	 	 	Rate	 	 	Amount	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Delta Air Lines
	 	Series 2010-2A-	 	 	[•], 20[•]	 	 	 	4.95	%	 	 	 	 
	Pass Through
	 	[     ]18	 	 	 	 	 	 	 	 	 	 	 	 	 
	Trust 2010-2A
	 	[Reg. No.]	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Equipment Note[s]	 	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	16	 	If any Series B Equipment Notes are being
issued on the Closing Date, this Schedule I shall be revised to include the
relevant information for the Class B Pass Through Trust.
	 
	17	 	Boeing 757-251 and MD-90-30 aircraft:
November 23, 2016.
Boeing 737-732, 757-351 and 777-232LR aircraft and Airbus A320-211,
A330-223 and A330-323 aircraft: November 23, 2018.

Boeing 737-832, 757-232 and 767-332ER aircraft: May 23, 2019.
	 
	18	 	To insert numbers 01-28 depending on the
applicable aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








SCHEDULE II to

PARTICIPATION AGREEMENT




TRUST SUPPLEMENTS19




     Trust Supplement No. 2010-2A, dated as of the Issuance Date, between Company and Pass Through
Trustee in respect of Delta Air Lines Pass Through Trust 2010-2A.





 




			
	19	 	If any Series B Equipment Notes are being
issued on the Closing Date, this Schedule III should be revised to include
the relevant information for the applicable Trust Supplement.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








Annex A to

Participation Agreement and

Indenture and Security Agreement

([REG. NO.])




DEFINITIONS

([REG. NO.])




     “Additional Insureds” has the meaning specified in Section 7.06(a) of the Indenture.



     “Affiliate” means with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person. For the purposes of this
definition, “control” (including “controlled by” and “under common control with”) shall mean the
power, directly or indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract or otherwise. In no
event shall U.S. Bank be deemed to be an Affiliate of Loan Trustee or vice versa.



     “After-Tax Basis” means that indemnity and compensation payments required to be made
on such basis will be supplemented by the Person paying the base amount by that amount which, when
added to such base amount, and after deduction of all Federal, state, local and foreign Taxes
required to be paid by or on behalf of the payee with respect of the receipt or realization of the
base amount and any such supplemental amounts, and after consideration of any current tax savings
of such payee resulting by way of any deduction, credit or other tax benefit actually and currently
realized that is attributable to such base amount or Tax, shall net such payee the full amount of
such base amount.



     “Agreement” and “Participation Agreement” mean that certain Participation
Agreement ([REG. NO.]), dated on or before the Closing Date, among Company, U.S. Bank, Pass Through
Trustee under each Pass Through Trust Agreement in effect as of the date of execution and delivery
of such Participation Agreement, Subordination Agent and Loan Trustee, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms.



     “Aircraft” means the Airframe (or any Replacement Airframe substituted therefor
pursuant to Section 7.05 of the Indenture) together with the two Engines described in the Indenture
Supplement originally executed and delivered under the Indenture (or any Replacement Engine that
may from time to time be substituted for any of such Engines pursuant to Section 7.04 or Section
7.05 of the Indenture), whether or not any of such initial or substituted Engines is from time to
time installed on such Airframe or installed on any other airframe or on any other aircraft. The
term “Aircraft” includes any Replacement Aircraft.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Aircraft Protocol” means the official English language text of the Protocol to
the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft
Equipment, adopted on November 16, 2001, at a diplomatic conference in Cape Town, South Africa, and
all amendments, supplements, and revisions thereto (and from and after the effective date of the
Cape Town Treaty in the relevant country, means when referring to the Aircraft Protocol with
respect to that country, the Aircraft Protocol as in effect in such country, unless otherwise
indicated).



     “Airframe” means (a) the [Boeing][Airbus][McDonnell Douglas] [Model] (generic
model [Generic Model]) aircraft (except (i) the Engines or engines from time to time
installed thereon and any and all Parts related to such Engine or engines and (ii) Excluded
Equipment) specified on Annex A to the Indenture Supplement originally executed and delivered under
the Indenture and (b) any and all related Parts. The term “Airframe” includes any
Replacement Airframe that is substituted for the Airframe pursuant to Section 7.05 of the
Indenture. At such time as any Replacement Airframe is so substituted and the Airframe for which
such substitution is made is released from the Lien of the Indenture, such replaced Airframe shall
cease to be an Airframe under the Indenture.



     [“Assigned Warranties” has the meaning specified in the definition of “Warranty
Rights”.]20



     “Bankruptcy Code” means the United States Bankruptcy Code, 11 United States Code §§101
et seq., as amended from time to time, or any successor statutes thereto.



     “Basic Pass Through Trust Agreement” means that certain Pass Through Trust Agreement,
dated as of November 16, 2000, between Company and U.S. Bank (as successor in interest to State
Street Bank and Trust Company of Connecticut, National Association), as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its terms (but does not
include any Trust Supplement).



     “Business Day” means any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in New York, New York, Atlanta, Georgia,
Boston, Massachusetts, Wilmington, Delaware or, if different from the foregoing, the city and state
in which Loan Trustee, the Pass Through Trustee or
Subordination Agent maintains its Corporate Trust Office or receives and disburses funds.



     “Cape Town Convention” means the official English language text of the Convention on
International Interests in Mobile Equipment, adopted on November 16, 2001, at a diplomatic
conference in Cape Town, South Africa, and all amendments,





 




			
	20	 	To be inserted for Airbus aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







supplements, and revisions thereto (and
from and after the effective date of the Cape Town Treaty in the relevant country, means when
referring to the Cape Town Convention with respect to that country, the Cape Town Convention as in
effect in such country, unless otherwise indicated).




     “Cape Town Treaty” means, collectively, the official English language text of
(a) the Convention on International Interests in Mobile Equipment, and (b) the
Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to
Aircraft Equipment, in each case adopted on November 16, 2001, at a diplomatic conference in Cape
Town, South Africa, and from and after the effective date of the Cape Town Treaty in the relevant
country, means when referring to the Cape Town Treaty with respect to that country, the Cape Town
Treaty as in effect in such country, unless otherwise indicated, and (c) all rules and
regulations adopted pursuant thereto and, in the case of each of the foregoing described in clauses
(a) through (c), all amendments, supplements, and revisions thereto.



     “Certificated Air Carrier” means a Citizen of the United States holding an air carrier
operating certificate issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49
of the United States Code for aircraft capable of carrying ten or more individuals or 6,000 pounds
or more of cargo or that otherwise is certified or registered to the extent required to fall within
the purview of Section 1110.



     “Citizen of the United States” has the meaning specified for such term in Section
40102(a)(15) of Title 49 of the United States Code or any similar legislation of the United States
enacted in substitution or replacement therefor.



     “Claim” has the meaning specified in Section 4.02(a) of the Participation Agreement.



     “Class A Certificates” means Pass Through Certificates issued by the Class A Pass
Through Trust.



     “Class A Liquidity Facility” has the meaning set forth in the Intercreditor Agreement.



     “Class A Liquidity Provider” has the meaning set forth in the Intercreditor Agreement.



     “Class A Pass Through Trust” means the Delta Air Lines Pass Through Trust 2010-2A
created pursuant to the Basic Pass Through Trust Agreement, as supplemented by Trust Supplement No.
2010-2A, dated as of the Issuance Date, between Company and U.S. Bank, as Class A Trustee.



     “Class A Trustee” means the trustee for the Class A Pass Through Trust.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Class B Certificates” means Pass Through Certificates, if any, issued by any Class B
Pass Through Trust (including, without limitation, any “Refinancing Certificates” (as such term is
defined in the Intercreditor Agreement)).



     “Class B Liquidity Facility” has the meaning set forth in the Intercreditor Agreement.



     “Class B Liquidity Provider” has the meaning set forth in the Intercreditor Agreement.



     “Class B Pass Through Trust” means (i) initially, a grantor trust, if any,
created pursuant to the applicable Pass Through Trust Agreement to facilitate the issuance and sale
of pass through certificates in connection with the initial issuance of any Series B Equipment
Notes and (ii) any “Refinancing Trust” (as such term is defined in the Intercreditor
Agreement) created in connection with any subsequent redemption of such Series B Equipment Notes
and issuance of new Series B Equipment Notes.



     “Class B Trustee” means the trustee for any Class B Pass Through Trust.



     “Closing” has the meaning specified in Section 2.03 of the Participation Agreement.



     “Closing Date” means the date of the closing of the transaction contemplated by the
Operative Documents.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” has the meaning specified in the granting clause of the Indenture.



     “Company” means Delta Air Lines, Inc., and its successors and permitted assigns.



     “Compulsory Acquisition” means requisition of title or other compulsory acquisition,
capture, seizure, deprivation, confiscation or detention for any reason of the Aircraft by any
government that results in the loss of title or use of the Aircraft by Company (or any Permitted
Lessee) for a period in excess of 180 consecutive days, but shall exclude requisition for use or
hire not involving requisition of title.



     “Confidential Information” has the meaning specified in Section 10.16 of the
Indenture.



     “Controlling Party” has the meaning specified in Section 2.06 of the Intercreditor
Agreement.



     “Corporate Trust Office” has the meaning specified in Section 1.01 of the
Intercreditor Agreement.



Participation Agreement (2010-2 EETC)

[Reg. No.]





 









 








     “CRAF Program” means the Civil Reserve Air Fleet Program authorized under 10 U.S.C.
Section 9511 et seq. or any similar or substitute program under the laws of the United States.



     “Debt Rate” means, with respect to any Series of Equipment Notes, (i) the rate
per annum specified for the applicable Series as such in Schedule I to the Indenture (as, in the
case of any Series B Equipment Notes issued after the Closing Date, such Schedule I may be amended
in connection with such issuance), and (ii) for any other purpose, with respect to any
period, the weighted average interest rate per annum during such period borne by the outstanding
Equipment Notes, excluding any interest payable at the Past Due Rate.



     “Defaulted Operative Indenture” means any Operative Indenture (the terms “Event of
Default”, “Equipment Notes” and “Payment Default” used in this definition have the meanings
specified therefor in such Operative Indenture) with respect to which (i) a Payment Default
has occurred and is continuing or an Event of Default described in Section 4.01(a) of such
Operative Indenture has occurred and is continuing or (ii) an Event of Default other than
an Event of Default described in Section 4.01(a) of such Operative Indenture has occurred and is
continuing and, in any such case, either (x) the Equipment Notes issued thereunder have
been accelerated and such acceleration has not been rescinded and annulled in accordance therewith
or (y) the loan trustee under such Operative Indenture has given Company a notice of its
intention to exercise one or more of the remedies specified in Section 4.02(a) of such Operative
Indenture; provided that in the event of a bankruptcy proceeding under the Bankruptcy Code
under which Company is a debtor, if and so long as the trustee or the debtor agrees to perform and
performs all obligations of Company under such Operative Indenture and the Equipment Notes issued
thereunder in accordance with Section 1110(a)(2) of the Bankruptcy Code and cures defaults under
such Operative Indentures and Equipment Notes to the extent required by Section 1110(a)(2) of the
Bankruptcy Code, such Operative Indenture shall not be a Defaulted Operative Indenture.



     “Department of Transportation” means the United States Department of Transportation
and any agency or instrumentality of the United States government succeeding to its functions.



     “Deposit Agreement” means each of (i) subject to Section 5(f) of the Note
Purchase Agreement, the Deposit Agreement (Class A), dated as of the Issuance Date, between Escrow
Agent and Depositary, which relates to the Class A Pass Through Trust and (ii) a deposit
agreement between Escrow Agent and Depositary that has been, or may in the future be, entered into
with respect to the Class B Pass Through Trust, if any, and to which Company shall have consented;
provided that, for purposes of any obligation of Company, no amendment, modification or
supplement to, or substitution or replacement of, any Deposit Agreement shall be effective unless
consented to by Company.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Depositary” means, subject to Section 5(f) of the Note Purchase Agreement, The Bank
of New York Mellon, a New York banking corporation, as Depositary under each Deposit Agreement.



     “Direction” has the meaning specified in Section 2.16 of the Indenture.



     “Dollars” and “$” mean the lawful currency of the United States.



     “Eligible Account” means an account established by and with an Eligible Institution at
the request of Loan Trustee, which institution agrees, for all purposes of the UCC including
Article 8 thereof, that (a) such account shall be a “securities account” (as defined in
Section 8-501(a) of the NY UCC), (b) such institution is a “securities intermediary” (as
defined in Section 8-102(a)(14) of the NY UCC), (c) all property (other than cash) credited
to such account shall be treated as a “financial asset” (as defined in Section 8-102(a)(9) of the
NY UCC), (d) Loan Trustee shall be the “entitlement holder” (as defined in Section
8-102(a)(7) of the NY UCC) in respect of such account, (e) it will comply with all
entitlement orders issued by Loan Trustee to the exclusion of Company, (f) it will waive or
subordinate in favor of Loan Trustee all claims (including, without limitation, claims by way of
security interest, lien or right of set-off or right of recoupment), and (g) the “securities
intermediary jurisdiction” (under Section 8-110(e) of the NY UCC) shall be the State of New York.



     “Eligible Institution” means the corporate trust department of (a) U.S. Bank
or any other Person that becomes a successor Loan Trustee under the Indenture, in each case, acting
solely in its capacity as a “securities intermediary” (as defined in Section 8-102(a)(14) of the NY
UCC), or (b) a depository institution organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia (or any U.S. branch of a
foreign bank), which has a Long-Term Rating from Moody’s of at least A3 (or its equivalent) and
from S&P of at least A (or its equivalent).



     “Engine” means (a) each of the two [Engine Manufacturer and Model] engines
(generic manufacturer and model [Generic Manufacturer and Model]), listed by manufacturer’s serial
number and further described on Annex A to the Indenture Supplement originally executed and
delivered under the Indenture, whether or not from time to time installed on the Airframe or
installed on any other airframe or on any other
aircraft and (b) any Replacement Engine substituted for an Engine pursuant to Section
7.04 or 7.05 of the Indenture; together in each case with any and all related Parts but excluding
Excluded Equipment. At such time as a Replacement Engine is so substituted and the Engine for
which substitution is made is released from the Lien of the Indenture, such replaced Engine shall
cease to be an Engine under the Indenture.



     “Equipment Note” means and includes any equipment notes issued under the Indenture in
the form specified in Section 2.01 thereof (as such form may be varied



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







pursuant to the terms of the
Indenture) and any Equipment Note issued in exchange therefor or replacement thereof pursuant to
Section 2.07 or 2.08 of the Indenture.




     “Equipment Note Register” has the meaning specified in Section 2.07 of the Indenture.



     “Equipment Note Registrar” has the meaning specified in Section 2.07 of the Indenture.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder. Section references to
ERISA are to ERISA as in effect at the date of the Participation Agreement and any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.



     “Escrow Agent” means U.S. Bank National Association, a national banking association,
as escrow agent under each Escrow Agreement, or any successor agent thereto.



     “Escrow Agreement” means each of (i) the Escrow and Paying Agent Agreement
(Class A), dated as of the Issuance Date, among Escrow Agent, Paying Agent, the Underwriters, and
Class A Trustee, which relates to the Class A Pass Through Trust and (ii) an escrow and
paying agent agreement among Escrow Agent, Paying Agent, Class B Trustee and any other party that
may be specified therein that has been, or may in the future be, entered into with respect to the
Class B Pass Through Trust, if any, and to which Company shall have consented; provided
that, for purposes of any obligation of Company, no amendment, modification or supplement to, or
substitution or replacement of, any such Escrow Agreement shall be effective unless consented to by
Company.



     “Event of Default” has the meaning specified in Section 4.01 of the Indenture.



     “Event of Loss” means, with respect to the Aircraft, Airframe or any Engine, any of
the following events with respect to such property:



     (a) the loss of such property or of the use thereof due to destruction, damage beyond repair
or rendition of such property permanently unfit for normal use for any reason whatsoever;



     (b) any damage to such property which results in an insurance settlement with respect to such
property on the basis of a total loss, a compromised total loss or a constructive total loss;



     (c) the theft, hijacking or disappearance of such property for a period in excess of 180
consecutive days;



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     (d) the requisition for use or hire of such property by any government (other than a
requisition for use or hire by a Government or the government of the country of registry of the
Aircraft) that results in the loss of possession of such property by Company (or any Permitted
Lessee) for a period in excess of 12 consecutive months;



     (e) the operation or location of the Aircraft, while under requisition for use by any
government, in any area excluded from coverage by any insurance policy in effect with respect to
the Aircraft required by the terms of Section 7.06 of the Indenture, unless Company shall have
obtained indemnity or insurance in lieu thereof from such government;



     (f) any Compulsory Acquisition;



     (g) as a result of any law, rule, regulation, order or other action by the FAA or other
government of the country of registry, the use of the Aircraft or Airframe in the normal business
of air transportation is prohibited by virtue of a condition affecting all aircraft of the same
type for a period of 18 consecutive months, unless Company is diligently carrying forward all steps
that are necessary or desirable to permit the normal use of the Aircraft or Airframe or, in any
event, if such use is prohibited for a period of three consecutive years; and



     (h) with respect to an Engine only, any divestiture of title to or interest in an Engine or
any event with respect to an Engine that is deemed to be an Event of Loss with respect to such
Engine pursuant to Section 7.02(a)(vii) of the Indenture.



     An Event of Loss with respect to the Aircraft shall be deemed to have occurred if an Event of
Loss occurs with respect to the Airframe unless Company elects to substitute a Replacement Airframe
pursuant to Section 7.05(a)(i) of the Indenture.



     “Excluded Equipment” means (i) defibrillators, enhanced emergency medical kits
and other medical equipment, (ii) airphones and other components or systems installed on or
affixed to the Airframe that are used to provide individual telecommunications or electronic
entertainment to passengers aboard the Aircraft, (iii) galley carts, beverage
carts, waste containers, liquor kits, food tray carriers, ice containers, oven inserts, galley
inserts, and other branded passenger convenience or service items, (iv) any items,
equipment or systems leased by Company or any Permitted Lessee (other than items, equipment, or
systems that are leased from Company pursuant to the applicable Lease) or owned by Company or any
Permitted Lessee subject to a conditional sales agreement or a security interest (other than the
security interest granted under the Indenture), and (v) cargo containers.



     “FAA” means the United States Federal Aviation Administration and any agency or
instrumentality of the United States government succeeding to its functions.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     [“FAA Bill of Sale” means the bill of sale for the Aircraft on AC Form 8050-2 executed
by Manufacturer or an affiliate of Manufacturer in favor of Company and recorded with the
FAA.]21



     [“FAA Bill of Sale” means the bill of sale for the Aircraft on AC Form 8050-2 executed
by the seller of the Aircraft in favor of Company and recorded with the FAA.]22



     “Federal Funds Rate” means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so
published for any day that is a Business Day, the average of the quotations for such day for such
transactions received by U.S. Bank from three Federal funds brokers of recognized standing selected
by it.



     [“French Pledge Agreement” means, collectively, the French Pledge Agreement, dated as
of the Closing Date, between Company and Loan Trustee, substantially in the form of Exhibit F-1 to
the Participation Agreement, and the Acte de Nantissement de Créances, dated as of the Closing
Date, between Company and Loan Trustee, substantially in the form of Exhibit F-2 to the
Participation Agreement.]23



     “Government” means the government of any of Canada, France, Germany, Japan, The
Netherlands, Sweden, Switzerland, the United Kingdom or the United States and any instrumentality
or agency thereof.



     “Indemnitee” has the meaning specified in Section 4.02(b) of the Participation
Agreement.



     “Indenture” means that certain Indenture and Security Agreement ([REG. NO.]), dated as
of the Closing Date, between Company and Loan Trustee, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms, including supplementation by an
Indenture Supplement pursuant to the Indenture.



     “Indenture Indemnitee” means (i) Loan Trustee, (ii) U.S. Bank,
(iii) each separate or successor or additional trustee appointed pursuant to Section 8.02
of the Indenture, (iv) so long as it holds any Equipment Notes as agent and trustee of any
Pass Through Trustee, Subordination Agent, (v) each Liquidity Provider, (vi) so
long as it is the holder





 




			
	21	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	22	 	To be inserted for MD-90-30 aircraft.
	 
	23	 	To be inserted for Airbus aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]





 









 







of any Equipment Notes, each Pass Through Trustee, (vii) Paying
Agent, (viii) Escrow Agent, and (ix) any of their respective successors and
permitted assigns in such capacities, directors, officers, employees, agents and servants. No
holder of a Pass Through Certificate in its capacity as such shall be an Indenture Indemnitee.




     “Indenture Supplement” means a supplement to the Indenture, substantially in the form
of Exhibit A to the Indenture, which particularly describes the Aircraft, and any Replacement
Airframe and/or Replacement Engine, included in the property subject to the Lien of the Indenture.



     “Insurance Threshold” is the amount set forth as the Insurance Threshold in Exhibit C
to the Indenture.



     “Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the
Issuance Date, among Class A Trustee, Class A Liquidity Provider and Subordination Agent, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with its
terms; provided that, for purposes of any obligations of Company, no amendment,
modification or supplement to, or substitution or replacement of, such Intercreditor Agreement
shall be effective unless consented to by Company.



     “Interests” has the meaning specified in Section 7.06(a) of the Indenture.



     “International Interest” has the meaning ascribed to the defined term “international
interest” under the Cape Town Treaty.



     “International Registry” means the international registry established pursuant to the
Cape Town Treaty.



     “Issuance Date” means November 22, 2010.



     “Lease” means any lease permitted by the terms of Section 7.02(a) of the Indenture.



     “Lien” means any mortgage, pledge, lien, encumbrance, lease, sublease, sub-sublease or
security interest.



     “Liquidity Facilities” means, collectively, the Class A Liquidity Facility and, if
provided, the Class B Liquidity Facility.



     “Liquidity Providers” means, collectively, Class A Liquidity Provider and, if any
Class B Liquidity Facility shall have been provided, Class B Liquidity Provider.



     “Loan Amount” has the meaning specified in Section 7.06(c) of the Indenture.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Loan Trustee” has the meaning specified in the introductory paragraph of the
Indenture.



     “Loan Trustee Liens” means any Lien attributable to U.S. Bank or Loan Trustee with
respect to the Aircraft, any interest therein or any other portion of the Collateral arising as a
result of (i) claims against U.S. Bank or Loan Trustee not related to its interest in the
Aircraft or the administration of the Collateral pursuant to the Indenture, (ii) acts of
U.S. Bank or Loan Trustee not permitted by, or the failure of U.S. Bank or Loan Trustee to take any
action required by, the Operative Documents or the Pass Through Documents, (iii) claims
against U.S. Bank or Loan Trustee relating to Taxes or Claims that are excluded from the
indemnification provided by Section 4.02 of the Participation Agreement pursuant to said Section
4.02 or (iv) claims against U.S. Bank or Loan Trustee arising out of the transfer by any
such party of all or any portion of its interest in the Aircraft, the Collateral, the Operative
Documents or the Pass Through Documents, except while an Event of Default is continuing and prior
to the time that Loan Trustee has received all amounts due to it pursuant to the Indenture.



     “Long-Term Rating” has the meaning specified in the Intercreditor Agreement.



     “Loss Payment Date” has the meaning specified in Section 7.05(a) of the Indenture.



     “Majority in Interest of Noteholders” means, as of a particular date of determination
and subject to Section 2.16 of the Indenture, the holders of at least a majority in aggregate
unpaid principal amount of all Equipment Notes outstanding as of such date (excluding any Equipment
Notes held by Company or any Affiliate thereof, it being understood that a Pass Through Trustee
shall be considered an Affiliate of Company as long as more than 50% in the aggregate face amount
of Pass Through Certificates issued by the corresponding Pass Through Trust are held by Company or
an Affiliate of Company or a Pass Through Trustee is otherwise under the control of Company or such
Affiliate of Company (unless all Equipment Notes then outstanding are held by Company or any
Affiliate thereof, including Pass Through Trustees which are considered Affiliates of Company
pursuant hereto); provided that for the purposes of
directing any action or casting any vote or giving any consent, waiver or instruction
hereunder, any Noteholder of an Equipment Note or Equipment Notes may allocate, in such
Noteholder’s sole discretion, any fractional portion of the principal amount of such Equipment Note
or Equipment Notes in favor of or in opposition to any such action, vote, consent, waiver or
instruction.



     “Make-Whole Amount” means, with respect to any Equipment Note, the amount (as
determined by an independent investment banker selected by Company (and, following the occurrence
and during the continuance of an Event of Default, reasonably acceptable to Loan Trustee)), if any,
by which (i) the present value of the remaining scheduled payments of principal and
interest from the redemption date to maturity of



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







such Equipment Note computed by discounting each
such payment on a semiannual basis from its respective Payment Date (assuming a 360-day year of
twelve 30 day months) using a discount rate equal to the Treasury Yield plus the Make-Whole Spread
exceeds (ii) the outstanding principal amount of such Equipment Note plus accrued but
unpaid interest thereon to the date of redemption. For purposes of determining the Make-Whole
Amount, “Treasury Yield” means, at the date of determination, the interest rate (expressed
as a semiannual equivalent and as a decimal rounded to the number of decimal places as appears in
the Debt Rate of such Equipment Note and, in the case of United States Treasury bills, converted to
a bond equivalent yield) determined to be the per annum rate equal to the semiannual yield to
maturity for United States Treasury securities maturing on the Average Life Date and trading in the
public securities market either as determined by interpolation between the most recent weekly
average constant maturity, non-inflation-indexed series yield to maturity for two series of United
States Treasury securities, trading in the public securities markets, (A) one maturing as
close as possible to, but earlier than, the Average Life Date and (B) the other maturing as
close as possible to, but later than, the Average Life Date, in each case as reported in the most
recent H.15(519) or, if a weekly average constant maturity, non-inflation indexed series yield to
maturity for United States Treasury securities maturing on the Average Life Date is reported in the
most recent H.15(519), such weekly average yield to maturity as reported in such H.15(519).
“H.15(519)” means the weekly statistical release designated as such, or any successor
publication, published by the Board of Governors of the Federal Reserve System. The date of
determination of a Make-Whole Amount shall be the third Business Day prior to the applicable
redemption date and the “most recent H.15(519)” means the latest H.15(519) published prior
to the close of business on the third Business Day prior to the applicable redemption date.
“Average Life Date” means, for each Equipment Note to be redeemed, the date which follows
the redemption date by a period equal to the Remaining Weighted Average Life at the redemption date
of such Equipment Note. “Remaining Weighted Average Life” of an Equipment Note, at the
redemption date of such Equipment Note, means the number of days equal to the quotient obtained by
dividing: (i) the sum of the products obtained by multiplying (A) the amount of
each then remaining installment of principal, including the payment due on the maturity date of
such Equipment Note, by (B) the number of days from and including the redemption date
to but excluding the scheduled Payment Date of such principal installment by (ii) the
then unpaid principal amount of such Equipment Note.




     “Make-Whole Spread” means, with respect to any Series of Equipment Notes, the
percentage specified for the applicable Series as such in Schedule I to the Indenture (as, in the
case of any Series B Equipment Notes issued after the Closing Date, such Schedule I may be amended
in connection with such issuance).



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     [“Manufacturer” means [The Boeing Company, a Delaware corporation]24[Airbus
S.A.S. (formerly known as Airbus G.I.E. and legal successor of AVSA S.A.R.L.), a société par
actions simplifiée organized and existing under the laws of the Republic of France]25,
and its successors and assigns.]26



     [“Manufacturer’s Consent” means the Manufacturer’s Consent and Agreement to Assignment
of Warranties, dated as of the Closing Date, substantially in the form of Exhibit D to the
Participation Agreement.]27



     “Minimum Insurance Amount” has the meaning specified in Section 7.06(a) of the
Indenture.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Noteholder” means any Person in whose name an Equipment Note is registered on the
Equipment Note Register (including, for so long as it is the registered holder of any Equipment
Notes, Subordination Agent on behalf of Pass Through Trustees pursuant to the provisions of the
Intercreditor Agreement).



     “Noteholder Liens” means any Lien attributable to any Noteholder on or against the
Aircraft, any interest therein or any other portion of the Collateral, arising out of any claim
against such Noteholder that is not related to the Operative Documents or Pass Through Documents,
or out of any act or omission of such Noteholder that is not related to the transactions
contemplated by, or that constitutes a breach by such Noteholder of its obligations under, the
Operative Documents or the Pass Through Documents.



     “Note Purchase Agreement” means the Note Purchase Agreement, dated as of the Issuance
Date, among Company, Subordination Agent, Escrow Agent, Paying Agent and
Class A Trustee providing for, among other things, the issuance and sale of certain equipment
notes, as the same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.



     “NY UCC” means UCC as in effect in the State of New York.





 




			
	24	 	To be inserted for Boeing aircraft.
	 
	25	 	To be inserted for Airbus aircraft.
	 
	26	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	27	 	To be inserted for all aircraft other than
MD-90-30 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Operative Documents” means, collectively, the Participation Agreement, the Indenture,
each Indenture Supplement[, the Manufacturer’s Consent]28 and the Equipment Notes.



     “Operative Indentures” means, as of any date, each “Indenture” (as such term is
defined in the Note Purchase Agreement), including the Indenture, whether any other “Indenture”
shall have been entered into before or after the date of the Indenture, but only if as of such date
all “Equipment Notes” (as defined in each such “Indenture”) are held by “Subordination Agent” under
the “Intercreditor Agreement”, as such terms are defined in each such “Indenture”.



     “Other Party Liens” means any Lien attributable to Pass Through Trustee (other than in
its capacity as Noteholder), Subordination Agent (other than in its capacity as Noteholder) or any
Liquidity Provider on or against the Aircraft, any interest therein, or any other portion of the
Collateral arising out of any claim against such party that is not related to the Operative
Documents or Pass Through Documents, or out of any act or omission of such party that is not
related to the transactions contemplated by, or that constitutes a breach by such party of its
obligations under, the Operative Documents or the Pass Through Documents.



     “Participation Agreement” has the meaning set forth under the definition of
“Agreement”.



     “Parts” means any and all appliances, parts, instruments, appurtenances, accessories,
furnishings and other equipment of whatever nature (other than (a) complete Engines or
engines and (b) Excluded Equipment), so long as the same are incorporated or installed in
or attached to the Airframe or any Engine or so long as the same are subject to the Lien of the
Indenture in accordance with the terms of Section 7.04 thereof after removal from the Airframe or
any Engine.



     “Pass Through Certificates” means the pass through certificates issued by any Pass
Through Trustee (and any other pass through certificates for which such pass through certificates
may be exchanged).



     “Pass Through Documents” means each Pass Through Trust Agreement, the Note Purchase
Agreement, each Escrow Agreement, each Deposit Agreement, the Intercreditor Agreement and each
Liquidity Facility.



     “Pass Through Trust” means each of the separate grantor trusts that have been or will
be created pursuant to the Pass Through Trust Agreements to facilitate certain of the transactions
contemplated by the Operative Documents.





 




			
	28	 	To be inserted for all aircraft other than
MD-90-30 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Pass Through Trust Agreement” means each of the Trust Supplements relating to the
Pass Through Trusts, together in each case with the Basic Pass Through Trust Agreement, as the same
may be amended, supplemented or otherwise modified from time to time in accordance with its terms.



     “Pass Through Trustee” means the trustee under each Pass Through Trust Agreement,
together with any successor in interest and any successor or other trustee appointed as provided in
such Pass Through Trust Agreement.



     “Past Due Rate” means the lesser of (a) with respect to (i) any
payment made to a Noteholder under any Series of Equipment Notes, the Debt Rate then applicable to
such Series plus 1% and (ii) any other payment made under any Operative Document to any
other Person, the Debt Rate plus 1% (computed on the basis of a year of 360 days comprised of
twelve 30-day months) and (b) the maximum rate permitted by applicable law.



     “Paying Agent” means U.S. Bank, as paying agent under each Escrow Agreement, and any
successor agent thereto.



     “Payment Date” means, for any Equipment Note, each May 23 and November 23, commencing
with [                    ].29



     “Payment Default” means the occurrence of an event that would give rise to an Event of
Default under Section 4.01(a) of the Indenture upon the giving of notice or the passing of time or
both.



     “Permitted Investments” means each of (a) direct obligations of the United
States and agencies thereof; (b) obligations fully guaranteed by the United States;
(c) certificates of deposit issued by, or bankers’ acceptances of, or time deposits with,
any bank, trust company or national banking association incorporated or doing business under the
laws of the United States or one of the states thereof having combined capital and surplus and
retained earnings of at least $100,000,000 and having a Long-Term Rating of A, its equivalent
or better by Moody’s or S&P (or, if neither such organization then rates such institutions, by any
nationally recognized rating organization in the United States); (d) commercial paper of
any holding company of a bank, trust company or national banking association described in clause
(c); (e) commercial paper of companies having a Short-Term Rating assigned to such
commercial paper by either Moody’s or S&P (or, if neither such organization then rates such
commercial paper, by any nationally recognized rating organization in the United States) equal to
either of the two highest ratings assigned by





 




			
	29	 	With respect to the Equipment Notes for the
Mortgaged Aircraft and the Owned Aircraft (each as defined in the Note Purchase
Agreement), insert “May 23, 2011” and with respect to the Equipment Notes for
the 2001-1 Aircraft (as defined in the Note Purchase Agreement), insert
“November 23, 2011”.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







such organization; (f) Dollar-denominated
certificates of deposit issued by, or time deposits with, the European subsidiaries of (i)
any bank, trust company or national banking association described in clause (c), or (ii)
any other bank or financial institution described in clause (g), (h) or (j) below; (g)
United States-issued Yankee certificates of deposit issued by, or bankers’ acceptances of, or
commercial paper issued by, any bank having combined capital and surplus and retained earnings of
at least $100,000,000 and headquartered in Canada, Japan, the United Kingdom, France, Germany,
Switzerland or The Netherlands and having a Long-Term Rating of A, its equivalent or better by
Moody’s or S&P (or, if neither such organization then rates such institutions, by any nationally
recognized rating organization in the United States); (h) Dollar-denominated time deposits
with any Canadian bank having a combined capital and surplus and retained earnings of at least
$100,000,000 and having a Long-Term Rating of A, its equivalent or better by Moody’s or S&P (or, if
neither such organization then rates such institutions, by any nationally recognized rating
organization in the United States); (i) Canadian Treasury Bills fully hedged to Dollars;
(j) repurchase agreements with any financial institution having combined capital and
surplus and retained earnings of at least $100,000,000 collateralized by transfer of possession of
any of the obligations described in clauses (a) through (i) above; (k) bonds, notes or
other obligations of any state of the United States, or any political subdivision of any state, or
any agencies or other instrumentalities of any such state, including, but not limited to,
industrial development bonds, pollution control revenue bonds, public power bonds, housing bonds,
other revenue bonds or any general obligation bonds, that, at the time of their purchase, such
obligations have a Long-Term Rating of A, its equivalent or better by Moody’s or S&P (or, if
neither such organization then rates such obligations, by any nationally recognized rating
organization in the United States); (1) bonds or other debt instruments of any company, if
such bonds or other debt instruments, at the time of their purchase, have a Long-Term Rating of A,
its equivalent or better by Moody’s or S&P (or, if neither such organization then rates such
obligations, by any nationally recognized rating organization in the United States); (m)
mortgage backed securities (i) guaranteed by the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation or the Government National Mortgage Association or having a
Long-Term Rating of AAA, its equivalent or better by Moody’s or S&P (or, if neither such
organization then rates such obligations, by any nationally recognized rating organization in the
United States) or, if unrated, deemed to be of a comparable quality by Loan Trustee and
(ii) having an average life not to exceed one year as determined by standard industry
pricing practices
presently in effect; (n) asset-backed securities having a Long-Term Rating of A, its
equivalent or better by Moody’s or S&P (or, if neither such organization then rates such
obligations, by any nationally recognized rating organization in the United States) or, if unrated,
deemed to be of a comparable quality by Loan Trustee; and (o) such other investments
approved in writing by Loan Trustee; provided that the instruments described in the
foregoing clauses shall have a maturity no later than the earliest date when such investments may
be required for distribution. The bank acting as Pass Through Trustee or Loan Trustee is hereby
authorized, in making or disposing of any




Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







investment described herein, to deal with itself (in its
individual capacity) or with any one or more of its affiliates, whether it or such affiliate is
acting as an agent of Pass Through Trustee or Loan Trustee or for any third person or dealing as
principal for its own account.




     “Permitted Lessee” means any Person to whom Company is permitted to lease the Airframe
or any Engine pursuant to Section 7.02(a) of the Indenture.



     “Permitted Lien” has the meaning specified in Section 7.01 of the Indenture.



     “Person” means any person, including any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust, trustee,
unincorporated organization or government or any agency or political subdivision thereof.



     “Prospective International Interest” has the meaning ascribed to the defined term
“prospective international interest” under the Cape Town Treaty.



     [“Purchase Agreement” means Purchase Agreement No. 2022, dated as of October 21, 1997,
which incorporates by reference the Aircraft General Terms Agreement AGTA-DAL, dated as of October
21, 1997, between Manufacturer and Company, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.]30



     [“Purchase Agreement” means Purchase Agreement No. 1631, dated as of December 1, 1989,
between Manufacturer and Company (as successor to Northwest Airlines, Inc.), as the same may be
amended, supplemented or otherwise modified from time to time in accordance with its
terms.]31



     [“Purchase Agreement” means Purchase Agreement No. 2023, dated as of October 21, 1997,
which incorporates by reference the Aircraft General Terms Agreement AGTA-DAL, dated as of October
21, 1997, between Manufacturer and
Company, as the same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.]32



     [“Purchase Agreement” means Purchase Agreement No. 2159, dated January 16, 2001,
between Manufacturer and Company (as successor to Northwest Airlines, Inc.), as





 




			
	30	 	To be inserted for 737-832 and 737-732
aircraft.
	 
	31	 	To be inserted for 757-251 aircraft.
	 
	32	 	To be inserted for 757-232 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







the same may be
amended, supplemented or otherwise modified from time to time in accordance with its
terms.]33




     [“Purchase Agreement” means Purchase Agreement No. 2024, dated as of October 21, 1997,
which incorporates by reference the Aircraft General Terms Agreement AGTA-DAL, dated as of October
21, 1997, between Manufacturer and Company, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.]34



     [“Purchase Agreement” means Purchase Agreement No. 2026, dated as of October 21, 1997
which incorporates by reference the Aircraft General Terms Agreement AGTA-DAL, dated as of October
21, 1997, between Manufacturer and Company, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.]35



     [“Purchase Agreement” means that certain [Airbus A319-100 Purchase Agreement, dated as
of September 19, 1997]36, between Manufacturer (as successor to AVSA S.A.R.L.) and
Company (as successor to Northwest Airlines, Inc.), as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.]37



     [“Purchase Agreement” means that certain Airbus A330 Purchase Agreement, dated as of
December 21, 2000, between Manufacturer (as successor to AVSA S.A.R.L.) and Company (as successor
to Northwest Airlines, Inc.), as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.]38



     [“Purchase Agreement” means, collectively, any purchase or other agreement under or
with respect to which Company has any continuing rights or benefits, in respect of (a) the
purchase by Company of the Airframe or (b) any Warranty Rights, in each case as the same
may be amended, supplemented or otherwise modified from time to time in accordance with its
terms.]39





 




			
	33	 	To be inserted for 757-351 aircraft.
	 
	34	 	To be inserted for 767-332ER aircraft.
	 
	35	 	To be inserted for 777-232LR aircraft.
	 
	36	 	To be confirmed.
	 
	37	 	To be inserted for A320-211 aircraft.
	 
	38	 	To be inserted for A330-223 and A330-323
aircraft.
	 
	39	 	To be inserted for MD-90-30 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Rating Agencies” has the meaning specified in the Intercreditor Agreement.



     “Related Equipment Note” means, as of any date, an “Equipment Note” as defined in each
Related Indenture, but only if as of such date it is held by “Subordination Agent” under the
“Intercreditor Agreement”, as such terms are defined in such Related Indenture.



     “Related Indemnitee Group” has the meaning specified in Section 4.02(b) of the
Participation Agreement.



     “Related Indenture” means each Operative Indenture (other than the Indenture).



     “Related Indenture Bankruptcy Default” means any “Event of Default” under Section
4.01(f), (g), (h) or (i) of any Related Indenture, determined without giving effect to any
applicable grace period.



     “Related Indenture Event of Default” means any “Event of Default” under any Related
Indenture.



     “Related Indenture Indemnitee” means each Related Noteholder.



     “Related Loan Trustee” means “Loan Trustee” as defined in each Related Indenture.



     “Related Make-Whole Amount” means the “Make-Whole Amount”, as defined in each Related
Indenture.



     “Related Noteholder” means a registered holder of a Related Equipment Note.



     “Related Secured Obligations” means, as of any date, the outstanding principal amount
of the Related Equipment Notes issued under each Related Indenture, the accrued and unpaid interest
(including, to the extent permitted by applicable law, post-petition interest) due thereon in
accordance with such Related Indenture as of such date, Related Make-Whole Amount, if any, with
respect thereto in accordance with such Related Indenture as of such date, and any other amounts
payable as of such date under the “Operative Documents” (as defined in each Related Indenture).



     “Related Series A Equipment Note” means, as of any date, a “Series A Equipment Note”,
as defined in each Related Indenture, but only if as of such date it is held by the “Subordination
Agent” under the “Intercreditor Agreement”, as such terms are defined in such Related Indenture.



     “Related Series B Equipment Note” means, as of any date, a “Series B Equipment Note”,
if any, as defined in each Related Indenture, but only if as of such date it is held



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 







by the
“Subordination Agent” under the “Intercreditor Agreement”, as such terms are defined in such
Related Indenture.




     “Replacement Aircraft” means the Aircraft of which a Replacement Airframe is part.



     “Replacement Airframe” means a [Boeing [737-800]40[757-200]41
[757-300]42[767-300ER]43[777-200LR]44][Airbus
[A320-200]45 [A330-200]46 [A330-300]47] [McDonnell Douglas
MD-90]48 aircraft or a comparable or improved model of [Manufacturer]49 [the
Airframe manufacturer (or any successor thereto)]50 (except (a) Engines or
engines from time to time installed thereon and any and all Parts related to such Engine or engines
and (b) Excluded Equipment), that shall have been made subject to the Lien of the Indenture
pursuant to Section 7.05 thereof, together with all Parts relating to such aircraft.



     “Replacement Engine” means a [Engine Manufacturer and Model] engine (or an engine of
the same or another manufacturer of a comparable or an improved model and
suitable for installation and use on the Airframe with the other Engine (or any other
Replacement Engine being substituted simultaneously therewith)) that is made subject to the Lien of
the Indenture pursuant to Section 7.04 or Section 7.05 thereof, together with all Parts relating to
such engine.



     “Replacement Liquidity Facility” has the meaning set forth in the Intercreditor
Agreement.





 




			
	40	 	To be inserted for 737-832 aircraft.
	 
	41	 	To be inserted for 757-251 and 757-232
aircraft.
	 
	42	 	To be inserted for 757-351 aircraft.
	 
	43	 	To be inserted for 767-332ER aircraft.
	 
	44	 	To be inserted for 777-232LR aircraft.
	 
	45	 	To be inserted for A320-211 aircraft.
	 
	46	 	To be inserted for A330-223 aircraft.
	 
	47	 	To be inserted for A330-323 aircraft.
	 
	48	 	To be inserted for MD-90-30 aircraft.
	 
	49	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	50	 	To be inserted for MD-90-30 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Replacement Liquidity Provider” has the meaning set forth in the Intercreditor
Agreement.



     “Responsible Officer” means, with respect to Company, its Chairman of the Board, its
President, its Chief Operating Officer, any Executive Vice President, any Senior Vice President,
the Chief Financial Officer, any Vice President, the Treasurer, the Controller or the Secretary.



     “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business.



     “Section 1110” means Section 1110 of the Bankruptcy Code.



     “Secured Obligations” has the meaning specified in Section 2.06 of the Indenture.



     “Securities Account” has the meaning specified in Section 3.07 of the Indenture.



     “Securities Act” means the Securities Act of 1933, as amended from time to time.



     “Securities and Exchange Commission” means the United States Securities and Exchange
Commission and any agency or instrumentality of the United States government succeeding to its
functions.



     “Securities Intermediary” has the meaning specified in Section 3.07 of the Indenture.



     “Series” means any series of Equipment Notes, including the Series A Equipment Notes
or, if issued, the Series B Equipment Notes.



     “Series A” or “Series A Equipment Notes” means Equipment Notes issued and
designated as “Series A Equipment Notes” under the Indenture, in the original principal amount and
maturities as specified in Schedule I to the Indenture under the heading “Series A Equipment Notes”
and bearing interest at the Debt Rate for Series A Equipment Notes specified in Schedule I to the
Indenture.



     “Series B” or “Series B Equipment Notes” means Equipment Notes, if any, issued
and designated as “Series B Equipment Notes” under the Indenture, in the original
principal amount and maturities as specified under the heading “Series B Equipment Notes” in
Schedule I to the Indenture (as such Schedule I may be amended in connection with the issuance of
such Equipment Notes, if issued after the Closing Date) and bearing interest at the Debt Rate for
Series B Equipment Notes specified in Schedule I to the Indenture (as such Schedule I may be
amended in connection with the issuance of such Equipment Notes, if issued after the Closing Date).



     “Short-Term Rating” has the meaning specified in the Intercreditor Agreement.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “Subordination Agent” has the meaning specified in the introductory paragraph of the
Participation Agreement.



     “Tax” and “Taxes” mean all governmental fees (including, without limitation,
license, filing and registration fees) and all taxes (including, without limitation, franchise,
excise, stamp, value added, income, gross receipts, sales, use and property taxes), withholdings,
assessments, levies, imposts, duties or charges, of any nature whatsoever, together with any
related penalties, fines, additions to tax or interest thereon imposed, withheld, levied or
assessed by any country, taxing authority or governmental subdivision thereof or therein or by any
international authority, including any taxes imposed on any Person as a result of such Person being
required to collect and pay over withholding taxes.



     “Transportation Code” means that portion of Title 49 of the United States Code
comprising those provisions formerly referred to as the Federal Aviation Act of 1958, as amended,
or any subsequent legislation that amends, supplements or supersedes such provisions.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to
time.



     “Trust Supplements” means (i) those agreements supplemental to the Basic Pass
Through Trust Agreement referred to in Schedule III to the Participation Agreement as of the
Closing Date and (ii) in the case of any Class B Certificates issued after the Closing
Date, whether in connection with the initial issuance of any Series B Equipment Notes, if so issued
after the Closing Date, or in connection with any subsequent redemption of any Series B Equipment
Notes (whether issued on or after the Closing Date) and issuance of new Series B Equipment Notes,
an agreement supplemental to the Basic Pass Through Trust Agreement pursuant to which (a) a
separate trust is created for the benefit of the holders of such Class B Certificates, (b)
the issuance of such Class B Certificates representing fractional undivided interests in the Class
B Pass Through Trust is authorized and (c) the terms of such Class B Certificates are
established.



     “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.



     “Underwriter” means each of the underwriters identified as such in the Underwriting
Agreement.



     “Underwriting Agreement” means that certain Underwriting Agreement, dated November 15,
2010, among Company and Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. Incorporated and
Deutsche Bank Securities Inc., acting as representatives of the underwriters named therein, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with its
terms.



Participation Agreement (2010-2 EETC)

[Reg. No.]




 









 








     “United States” means the United States of America.



     “U.S. Bank” has the meaning specified in the introductory paragraph of the
Participation Agreement.



     [“Warranty Bill of Sale” means the warranty (as to title) bill of sale covering the
Aircraft executed by Manufacturer or an affiliate of Manufacturer in favor of Company and
specifically referring to each Engine, as well as the Airframe, constituting a part of the
Aircraft.]51



     [“Warranty Bill of Sale” means the warranty (as to title) bill of sale covering the
Aircraft executed by the seller of the Aircraft in favor of Company and specifically referring to
each Engine, as well as the Airframe, constituting a part of the Aircraft.]52



     “Warranty Rights” means [all right and interest of Company in, to and under Parts 1,
2, 3, 4 and 6 of the Product Assurance Document attached as Exhibit C to the Aircraft General Terms
Agreement AGTA-DAL, dated as of October 21, 1997, but only to the extent the same relate to
continuing rights of Company in respect of any warranty or indemnity, express or implied, pursuant
to the Product Assurance Document with respect to the Airframe, it being understood that the
Warranty Rights exclude any and all other right, title and interest of Company in, to and under the
Purchase Agreement and that the Warranty Rights are subject to the terms of the Manufacturer’s
Consent]53 [all right and interest of Company in, to and under the Product Assurance
Document attached as Exhibit B to the Purchase Agreement, but only to the extent the same relates
to continuing rights of Company in respect of any warranty or indemnity, express or implied,
pursuant to the Product Assurance Document with respect to the Airframe, it being understood that
the Warranty Rights exclude any and all other right, title and interest of Company in, to and under
the Purchase Agreement and that the Warranty
Rights are subject to the terms of the Manufacturer’s Consent]54 [all right and
interest of Company in, to and under Clauses 12 and 13 of the Purchase Agreement, including all
post-delivery rights in respect thereof, as are and remain available on the Closing Date, given by
Manufacturer in respect of the Airframe to Company (the “Assigned Warranties”) and all
payments to be received by Company and all rights of Company to enforce such payments under the
Assigned Warranties, it being understood that the Warranty Rights exclude any and all other right,
title and interest of Company in, to and under the Purchase Agreement and that the Warranty Rights
are subject to the terms of





 




			
	51	 	To be inserted for all aircraft other than
MD-90-30 aircraft.
	 
	52	 	To be inserted for MD-90-30 aircraft.
	 
	53	 	To be inserted for Boeing 737-732, 737-832,
757-232, 767-332ER and 777-232LR aircraft.
	 
	54	 	To be inserted for Boeing 757-251 and
757-351 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]





 









 







the Manufacturer’s Consent]55 [with respect to the Airframe,
the rights of Company under any warranty or indemnity, express or implied, regarding title,
materials, workmanship, design and patent infringement, or related matters in respect of the
Airframe, in each case to the extent that: (i) such rights relate to the Airframe (and not
to other any other properties or assets), (ii) such rights are assignable by Company
without incurring any expense payable to any manufacturer of the Airframe or any Part thereof or
any other third party, and (iii) such assignment does not require the consent of any
Person and does not violate any contract or agreement binding upon Company relating to such
rights]56.






 




			
	55	 	To be inserted for Airbus aircraft.
	 
	56	 	To be inserted for MD-90-30 aircraft.





Participation Agreement (2010-2 EETC)

[Reg. No.]