Common use of BACK Clause in Contracts

BACK. (b) If, pursuant to subsection (a) above, the Liquidity Provider sells any participation in this Agreement to any bank or other entity (each, a “Transferee”), then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes will be required to be withheld with respect to any payments to be made to such Transferee in respect of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory rate.

BACK. (c) Notwithstanding the foregoing provisions of clauses (a) and (b) Ifabove, pursuant at any time after 18 months from the earliest to subsection occur of (ai) abovethe date on which the entire Required Amount as of such date under the Liquidity Facility shall have been drawn (excluding a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing but including a Final Drawing or a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing that has been converted to a Final Drawing under the Liquidity Facility) and shall remain unreimbursed, (ii) the date on which the portion of any Downgrade Drawing, Non-Extension Drawing or Special Termination Drawing equal to the Required Amount as of such date under the Liquidity Facility shall have become and remain "Applied Downgrade Advances", "Applied Non-Extension Advances" or "Applied Special Termination Advances", as the case may be, under and as defined in the Liquidity Facility and (iii) the date on which all Equipment Notes under all Indentures shall have been Accelerated (provided that (x) with respect to the period prior to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal balance of in excess of $150,000,000, and (y) in the event of a bankruptcy proceeding under the Bankruptcy Code in which Continental is a debtor, any amounts payable in respect of Equipment Notes which have become immediately due and payable by declaration or otherwise shall not be considered Accelerated for purposes of this sub-clause (iii) until the expiration of the 60-day period under Section 1110(a)(2)(A) of the Bankruptcy Code or such longer period as may apply under Section 1110(a)(2)(B) or Section 1110(b) of the Bankruptcy Code), the Liquidity Provider sells (so long as it has not defaulted in its obligation to make any participation in this Agreement Drawing under the Liquidity Facility) shall have the right to elect, by Written Notice to the Subordination Agent and each of the Trustees, to become the Controlling Party hereunder at any bank or other entity (each, a “Transferee”), then, concurrently with time from and including the effectiveness last day of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes will be required to be withheld with respect to any payments to be made to such Transferee in respect of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory rate18-month period.

BACK. (b) Ifhereunder shall be unconditional, pursuant to subsection (a) aboveirrespective of the validity, regularity or enforceability of the Notes or this Indenture, the Liquidity Provider sells absence of any participation in this Agreement action to enforce the same, any bank waiver or other entity (each, a “Transferee”), then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit consent by any Holder of the Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes will be required to be withheld Notes with respect to any payments provisions of this Indenture and the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that the Note Guarantees shall not be made discharged except by complete performance of the obligations contained in the Notes and this Indenture. If after the Issue Date the Company or any Subsidiary of the Company acquires or creates another Subsidiary (other than a special purpose financing vehicle) and such Subsidiary is a North American Subsidiary, then at such time as such Subsidiary first becomes a Significant Subsidiary of the Company, that newly acquired or created Subsidiary must become a Guarantor and execute a supplemental indenture satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee within 10 Business Days of the date on which it first becomes a Significant Subsidiary; provided, however, that this provision will not apply to a Subsidiary that is an “unrestricted” subsidiary under all Indebtedness of the Company that has such Transferee concept and that is not a guarantor of or otherwise an obligor on such Indebtedness or any other Indebtedness of the Company or the Parent. The Company shall not permit any of its Subsidiaries that is not a Guarantor of the Notes, directly or indirectly, to Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Company or the Parent unless such Subsidiary simultaneously executes and delivers a supplemental indenture providing for the Guarantee of the payment of the Notes by such Subsidiary to the same extent as such Guarantee of such other Indebtedness, which Guarantee shall be senior to or pari passu with such Restricted Subsidiary’s Guarantee of or pledge to secure such other Indebtedness; provided, however, that this provision will not apply to a Subsidiary that is an “unrestricted” subsidiary under all Indebtedness of the Company that has such concept and that is not a guarantor of or otherwise an obligor on such Indebtedness or any other Indebtedness of the Company or the Parent. Notwithstanding the preceding paragraph, any Note Guarantee of the Notes shall provide by its terms that it shall be automatically and unconditionally released and discharged under the circumstances described in Section 13.05 hereof. If any Holder or the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or Guarantors, any amount paid by either to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of this Agreementany obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, (ii) furnish to as between the Liquidity Provider Guarantors, on the one hand, and the Borrower either Holders and the Trustee, on the other hand, (x) a statement that it is incorporated under the laws maturity of the United States obligations guaranteed hereby BACK may be accelerated as provided in Article 6 hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or a state thereof or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) if it is in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed due and payable) shall forthwith become due and payable by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (Guarantors for the benefit purpose of these Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments Holders under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory ratethese Guarantees.

BACK. (bSection 8.1(c) Ifbefore, pursuant to subsection (a) aboveor simultaneously with, the Liquidity Provider sells any participation in this Agreement to any bank or other entity (eachentering into such No-Shop Superior Proposal Agreement; provided, a “Transferee”)however, then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either that (A) prior to taking such actions, the Company shall give Parent at least seventy-two (72) hours prior written notice (the “Notice Period”) thereof (which notice shall state that it is incorporated under the laws Company has received a Superior Proposal, attaching the latest draft of the United States or a state thereof or No-Shop Superior Proposal Agreement and the other agreements (Bif any) that under applicable law relating to the terms and treatiesconditions of the Superior Proposal (in each case, no taxes will with any identifying information redacted), which notice need only be required to be withheld given once with respect to any payments Superior Proposal, unless such Superior Proposal is modified in any material respect (it being agreed that any change in purchase price shall be deemed a material revision), in which case a new notice shall be delivered to Parent pursuant to this Section 6.2(d) and a new Notice Period shall be made commenced upon the delivery of such new notice, subject to such Transferee in respect the final sentence of this AgreementSection 6.2(d)(ii)); (B) within the Notice Period, the Company shall, and shall cause its financial and legal advisors to, negotiate with Parent and its Representatives in good faith (ii) furnish to the Liquidity Provider extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Alternative Proposal would cease to constitute a Superior Proposal; and (C) if, within the Borrower either Notice Period, Parent makes a bona fide offer that the Company Board determines in good faith (after consultation with the Company’s financial advisor and outside counsel), (x) would render such Alternative Proposal no longer a statement Superior Proposal (taking into account, among other things, (I) the terms of such offer and (II) such legal, financial, regulatory, timing, financing, conditionality (i.e., closing conditions) and other aspects of such offer and the Merger which the Company Board deems relevant (including any stockholder litigation in connection with the Merger)), and Parent agrees in writing to all adjustments in the terms and conditions of this Agreement as are necessary to reflect such offer, then the Company’s notice of termination with respect to such Superior Proposal shall be deemed to be rescinded and of no further force and effect and the parties hereto shall promptly modify this Agreement in accordance with such adjustments. Notwithstanding the foregoing, in the event that it is incorporated under the laws of the United States or a state thereof or Company gives Parent at least seventy-two (y72) if it is not so incorporated, two copies hours’ notice of a properly completed United States Internal Revenue Service Form W-8ECISuperior Proposal as provided above in this Section 6.2(d)(ii), Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed then any subsequent notice of termination given by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments Company under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it Section 6.2(d)(ii) shall require only a Notice Period of at least forty-eight (and required by applicable law48) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory ratehours before taking effect.

BACK. (bc) IfIf following a Continental Bankruptcy Event and during the pendency thereof, the Controlling Party receives a proposal from or on behalf of Continental to restructure the financing of any one or more of the Aircraft, the Controlling Party shall promptly thereafter give the Subordination Agent and each Trustee notice of the material economic terms and conditions of such restructuring proposal whereupon the Subordination Agent acting on behalf of each Trustee shall endeavor using reasonable commercial efforts to make such terms and conditions of such restructuring proposal available to all Certificateholders (whether by posting on DTC’s Internet board or otherwise) and to each Liquidity Provider that has not made a Final Advance. Thereafter, neither the Subordination Agent nor any Trustee, whether acting on instructions of the Controlling Party or otherwise, may, without the consent of each Trustee, enter into any term sheet, stipulation or other agreement (whether in the form of an adequate protection stipulation, an extension under Section 1110(b) of the Bankruptcy Code or otherwise) to effect any such restructuring proposal with or on behalf of Continental unless and until the material economic terms and conditions of such restructuring shall have been made available to all Certificateholders and to each Liquidity Provider that has not made a Final Advance for a period of not less than 15 calendar days (except that such requirement shall not apply to any such term sheet, stipulation or other agreement that is entered into on or prior to the expiry of the 60-Day Period and that is effective for a period not longer than three months from the expiry of the 60-Day Period). In the event that any Class B Certificateholder or Additional Certificateholder gives irrevocable notice of the exercise of its right to purchase all (but not less than all) of the Class of Certificates represented by the then Controlling Party pursuant to subsection (a) the applicable Trust Agreement prior to the expiry of the 15-day notice period specified above, such Controlling Party may not direct the Liquidity Provider sells Subordination Agent or any participation in this Agreement Trustee to enter into any bank or other entity (each, a “Transferee”), then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes will be required to be withheld restructuring proposal with respect to any payments of the Aircraft unless and until such Certificateholder shall fail to be made to purchase such Transferee in respect Class of this Agreement, (ii) furnish to Certificates on the Liquidity Provider and the Borrower either (x) a statement date that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, required to make such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory ratepurchase.

BACK. (b) IfIndenture Indemnitees shall have no obligation or liability under the Indenture Agreements by reason of or arising out of the assignment hereunder, nor shall the Mortgagee, the Note Holders or the Indenture Indemnitees be required or obligated in any manner to perform or fulfill any obligations of the Owner under or pursuant to subsection (a) abovethe Indenture Agreements, the Liquidity Provider sells or, except as herein expressly provided, to make any participation in this Agreement payment, to make any bank or other entity (each, a “Transferee”), then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent inquiry as to the Liquidity Provider (for nature or sufficiency of any payment received by it, to present or file any claim, or to take any action to collect or enforce the benefit payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Owner does hereby constitute the Mortgagee the true and lawful attorney of the Liquidity Provider Owner, irrevocably, granted for good and valuable consideration and coupled with an interest and with full power of substitution, and with full power (in the Borrower) either (A) that it is incorporated under the laws name of the United States Owner or a state thereof or (Botherwise) that under applicable law to ask for, require, demand, receive, compound and treaties, no taxes will be required to be withheld with respect to any payments to be made to such Transferee in respect of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to give acquittance for any and all payments monies and claims for monies (in each case including insurance and requisition proceeds) due and to become due under or arising out of the Indenture Agreements, and all other property which now or hereafter constitutes part of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or to take any action or to institute any proceedings which the Mortgagee may deem to be made necessary or advisable in the premises; provided that the Mortgagee shall not exercise any such rights except upon the occurrence and during the continuance of an Event of Default hereunder. The Owner agrees that at any time and from time to time, upon the written request of the Mortgagee, the Owner will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents (iiiincluding without limitation UCC continuation statements) agree (as the Mortgagee may reasonably deem necessary to perfect, preserve or protect the mortgage, security interests and assignments created or intended to be created hereby or to obtain for the benefit Mortgagee the full benefits of the Liquidity Provider assignment hereunder and of the Borrower) to provide rights and powers herein granted. IT IS HEREBY COVENANTED AND AGREED by and between the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, parties hereto as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory rate.follows:

BACK. (bc) IfIf following a Hawaiian Bankruptcy Event and during the pendency thereof, the Controlling Party receives a proposal from or on behalf of Hawaiian to restructure the financing of any one or more of the Aircraft, the Controlling Party shall promptly thereafter give the Subordination Agent and each Trustee notice of the material economic terms and conditions of such restructuring proposal whereupon the Subordination Agent acting on behalf of each Trustee shall endeavor using reasonable commercial efforts to make such terms and conditions of such restructuring proposal available to all Certificateholders (whether by posting on DTC’s Internet board or otherwise) and to each Liquidity Provider that has not made a Final Advance. Thereafter, neither the Subordination Agent nor any Trustee, whether acting on instructions of the Controlling Party or otherwise, may, without the consent of each Trustee, enter into any term sheet, stipulation or other agreement (whether in the form of an adequate protection stipulation, an extension under Section 1110(b) of the Bankruptcy Code or otherwise) to effect any such restructuring proposal with or on behalf of Hawaiian unless and until the material economic terms and conditions of such restructuring shall have been made available to all Certificateholders and to each Liquidity Provider that has not made a Final Advance for a period of not less than 15 calendar days (except that such requirement shall not apply to any such term sheet, stipulation or other agreement that is entered into on or prior to the expiry of the 60-Day Period and that is effective for a period not longer than three months from the expiry of the 60-Day Period). In the event that any Class B Certificateholder or Additional Certificateholder gives irrevocable notice of the exercise of its right to purchase all (but not less than all) of the Class of Certificates represented by the then Controlling Party pursuant to subsection (a) the applicable Trust Agreement prior to the expiry of the 15-day notice period specified above, such Controlling Party may not direct the Liquidity Provider sells Subordination Agent or any participation in this Agreement Trustee to enter into any bank or other entity (each, a “Transferee”), then, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes will be required to be withheld restructuring proposal with respect to any payments of the Aircraft unless and until such Certificateholder shall fail to be made to purchase such Transferee in respect Class of this Agreement, (ii) furnish to Certificates on the Liquidity Provider and the Borrower either (x) a statement date that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, required to make such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory ratepurchase.

BACK. (b) Ifthe obligations assumed by it thereunder, except to the extent prohibited or excluded from doing so pursuant to subsection (a) abovethe terms and provisions thereof, and the Mortgagee, the Liquidity Provider sells any participation in this Agreement to any bank Note Holders and the Indenture Indemnitees shall have no obligation or other entity (eachliability under the Indenture Agreements by reason of or arising out of the assignment hereunder, a “Transferee”), then, concurrently with nor shall the effectiveness of such participationMortgagee, the Transferee shall (i) represent Note Holders or the Indenture Indemnitees be required or obligated in any manner to perform or fulfill any obligations of the Owner under or pursuant to the Liquidity Provider (for Indenture Agreements, or, except as herein expressly provided, to make any payment, or to make any inquiry as to the benefit nature or sufficiency of any payment received by it, or present or file any claim, or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. The Owner does hereby constitute the Mortgagee the true and lawful attorney of the Liquidity Provider Owner, irrevocably, granted for good and valuable consideration and coupled with an interest and with full power of substitution, and with full power (in the Borrower) either (A) that it is incorporated under the laws name of the United States Owner or a state thereof or (Botherwise) that under applicable law to ask for, require, demand, receive, compound and treaties, no taxes will be required to be withheld with respect to any payments to be made to such Transferee in respect of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to give acquittance for any and all payments monies and claims for monies (in each case including insurance and requisition proceeds) due and to become due under or arising out of the Indenture Agreements, and all other property which now or hereafter constitutes part of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or to take any action or to institute any proceedings which the Mortgagee may deem to be made necessary or advisable in the premises; provided that the Mortgagee shall not exercise any such rights except upon the occurrence and during the continuance of an Event of Default hereunder. The Owner agrees that at any time and from time to time, upon the written request of the Mortgagee, the Owner will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents (iiiincluding without limitation UCC continuation statements) agree (as the Mortgagee may reasonably deem necessary to perfect, preserve or protect the mortgage, security interests and assignments created or intended to be created hereby or to obtain for the benefit Mortgagee the full benefits of the Liquidity Provider assignment hereunder and of the Borrower) to provide rights and powers herein granted. IT IS HEREBY COVENANTED AND AGREED by and between the Liquidity Provider and the Borrower a new Form W-8ECI, Form W-8BEN or Form W-9, parties hereto as appropriate, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory rate.follows:

BACK. (b) Iftherewith); provided, pursuant to subsection (a) above, that the Liquidity Provider sells any participation in Company must terminate this Agreement to any bank in accordance with Section 8.1(c) before or other entity (eachsimultaneously with, a “Transferee”)entering into such Go-Shop Superior Proposal Agreement; provided, thenhowever, concurrently with the effectiveness of such participation, the Transferee shall (i) represent to the Liquidity Provider (for the benefit of the Liquidity Provider and the Borrower) either that (A) prior to taking such actions, the Company shall give Parent at least forty-eight (48) hours notice thereof (which notice shall state that it is incorporated under the laws Company has received a Superior Proposal, attaching the latest draft of the United States or a state thereof or Go-Shop Superior Proposal Agreement and the other agreements (Bif any) that under applicable law relating to the terms and treatiesconditions of the Superior Proposal (in each case, no taxes will with any identifying information redacted), which notice need only be required to be withheld given once with respect to any payments to Superior Proposal, unless such Superior Proposal is modified in any material respect (it being agreed that any change in purchase price shall be made to such Transferee deemed a material revision) in respect of this Agreement, (ii) furnish to the Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Transferee’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Liquidity Provider and the Borrower) to provide the Liquidity Provider and the Borrower which case a new Form W-8ECI, Form W-8BEN or Form W-9, as appropriate, (Anotice shall be delivered to Parent pursuant to this Section 6.2(d) on or before and a new 48-hour period shall be commenced upon the date that any delivery of such form expires or becomes obsolete or new notice); (B) within the Notice Period, the Company, shall, and shall cause its financial and legal advisors to, negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Alternative Proposal would cease to constitute a Superior Proposal and (C) if within such forty-eight (48) hour period, Parent makes a bona fide offer that the Company Board determines in good faith (after consultation with the occurrence Company’s financial advisor and outside counsel) would render such Alternative Proposal no longer a Superior Proposal (taking into account, among other things, (I) the terms of such offer and (II) such legal, financial, regulatory, timing, financing, conditionality (i.e. closing conditions) and other aspects of such offer and the Merger which the Company Board deems relevant (including any event requiring a change stockholder litigation in connection with the Merger)), and Parent agrees in writing to all adjustments in the most recent form previously delivered by it terms and prior conditions of this Agreement as are necessary to reflect such offer, then the immediately following due date Company’s notice of any payment by termination with respect to such Superior Proposal shall be deemed to be rescinded and of no further force and effect and the Borrower hereunder, certifying parties hereto shall promptly modify this Agreement in the case of a Form W-8ECI, Form W-8BEN or Form W-9 that accordance with such Transferee is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement. Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower will withhold taxes as required by law from such payments at the applicable statutory rate.adjustment; and