EX-4.44 10 f20f2022ex4-44_latamair.htm JOINT VENTURE AGREEMENT, DATED AS OF MAY 7, 2020 AMONG THE COMPANY AND DELTA AIR LINES INC

Exhibit 4.44

Execution Version

STRICTLY PRIVATE AND CONFIDENTIAL

TRANS-AMERICAN

JOINT VENTURE AGREEMENT

among

DELTA AIR LINES, INC.,

LATAM AIRLINES GROUP S.A., D/B/A LAN AIRLINES,

TAM LINHAS AÉREAS S.A.,

LATAM AIRLINES PERÚ S.A.,

TRANSPORTES AEREOS DEL MERCOSUR S.A., D/B/A TAM MERCOSUR,

and

AEROVIAS DE INTEGRACION REGIONAL, AIRES S.A., D/B/A LAN

COLOMBIA

TABLE OF CONTENTS

| Page
ARTICLE 1 DEFINITIONS | 2
Section 1.1 | Definitions | 2
ARTICLE 2 JOINT VENTURE IMPLEMENTATION | 2
Section 2.1 | Implementing Agreements | 2
Section 2.2 | Implementation of Joint Venture | 2
Section 2.3 | Conditions Precedent | 3
ARTICLE 3 THE JOINT VENTURE | 5
Section 3.1 | Objectives of the Joint Venture | 5
Section 3.2 | Characterization of the Joint Venture | 5
Section 3.3 | Scope of the Joint Venture; Affiliates and Contract Carriers | 5
Section 3.4 | JV Routes | 6
Section 3.5 | Beyond Routes; JV Routings | 6
ARTICLE 4 COORDINATION OF THE JOINT VENTURE | 6
Section 4.1 | General Principles | 6
Section 4.2 | Leadership Team | 7
Section 4.3 | Working Groups | 8
Section 4.4 | Antitrust Protocols | 9
ARTICLE 5 JOINT VENTURE OPERATIONS | 9
Section 5.1 | Joint Network Plan | 9
Section 5.2 | Network Governance | 11
Section 5.3 | Allocation of Capacity Growth | 12
Section 5.4 | Joint Venture Governance Regarding Third Party Cooperation | 12
Section 5.5 | Flight Operations | 13
ARTICLE 6 JOINT VENTURE COMMERCIAL ACTIVITIES | 13
Section 6.1 | General | 13
Section 6.2 | Reciprocal Codesharing | 13
Section 6.3 | Network and Schedule Planning | 14
Section 6.4 | Pricing and Revenue Management | 14
Section 6.5 | Passenger Sales and Marketing | 17
Section 6.6 | Frequent Flyer Programs; Premium Customer Handling | 17
Section 6.7 | Ticket Data Exchange | 18
Section 6.8 | Airport Co-Location | 18
Section 6.9 | Improved Passenger Connections | 18
Section 6.10 | Product Planning | 18
Section 6.11 | Cost Savings Initiatives | 19
Section 6.12 | Cargo Coordination | 19
Section 6.13 | Advertising and Marketing | 19
ARTICLE 7 FINANCIAL SETTLEMENT | 19
Section 7.1 | Financial Settlement | 19
Section 7.2 | Reference Period Calculations | 21
Section 7.3 | Financial Data Exchange | 21
Section 7.4 | Audit | 21

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ARTICLE 8 COMPETING OPERATIONS | 22
Section 8.1 | Competing Operations | 22
ARTICLE 9 REGULATORY APPROVALS | 23
Section 9.1 | Regulatory Approvals | 23
Section 9.2 | Changes in Applicable Law | 23
ARTICLE 10 REPRESENTATIONS AND WARRANTIES | 23
Section 10.1 | Representations and Warranties by Delta | 23
Section 10.2 | Representations and Warranties by LATAM | 24
ARTICLE 11 TERM AND TERMINATION; LIQUIDATED DAMAGES | 25
Section 11.1 | Term | 25
Section 11.2 | Termination | 25
Section 11.3 | Effect of Termination | 27
Section 11.4 |  | 27
ARTICLE 12 INDEMNIFICATION | 28
Section 12.1 | Operational Claims | 28
Section 12.2 | Indemnification | 28
Section 12.3 | Indemnification Procedures | 29
Section 12.4 | Indemnification Payment | 31
ARTICLE 13 LIMITATION OF LIABILITY | 31
Section 13.1 | Limitation of Liability | 31
ARTICLE 14 CONFIDENTIALITY | 32
Section 14.1 | Confidential Information | 32
Section 14.2 | Use of Confidential Information | 33
Section 14.3 | Termination | 33
ARTICLE 15 DATA SECURITY AND PRIVACY; PROPRIETARY RIGHTS | 34
Section 15.1 | Data Security and Privacy | 34
Section 15.2 | Proprietary Rights | 34
ARTICLE 16 MISCELLANEOUS | 36
Section 16.1 | Notices | 36
Section 16.2 | Amendments | 37
Section 16.3 | Taxes | 37
Section 16.4 | Severability | 38
Section 16.5 | Non-Waiver | 39
Section 16.6 | Assignment | 39
Section 16.7 | Governing Law; Dispute Resolution | 39
Section 16.8 | Counterparts | 40
Section 16.9 | Entire Agreement | 40
Section 16.10 | No Third-Party Beneficiaries | 40
Section 16.11 | Successors and Assigns | 40
Section 16.12 | Force Majeure | 40

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Section 16.13 | Specific Performance | 41
Section 16.14 | Further Assurances | 41
Section 16.15 | Independent Contractor | 41
Section 16.16 | Other | 41
Section 16.17 | Costs and Expenses | 42
Section 16.18 | Survival | 42
Section 16.19 | Public Announcements | 42
Schedule A – Definitions | A-1
Schedule B – Cargo Cooperation Implementation Plan | B-1
Schedule C – Financial Settlement | C-1
Schedule D – EASK Calculation | D-1

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TRANS-AMERICAN JOINT VENTURE AGREEMENT

This TRANS-AMERICAN JOINT VENTURE AGREEMENT (as amended from time to time in accordance with the provisions hereof and together with all exhibits, schedules and attachments hereto, the “Agreement”) is entered into as of this 7th day of May, 2020 by and among:

Delta Air Lines, Inc., a corporation organized under the laws of the State of Delaware, having its principal office at 1030 Delta Boulevard, Atlanta, Georgia 30354, USA. (“Delta”);

LATAM Airlines Group S.A., a sociedad anónima organized under the laws of Chile, having its principal office at Avenida Presidente Riesco 5711, Piso 19, Las Condes, Santiago, Región Metropolitana, Chile (“LATAM Airlines” and, together with LATAM Airlines Brasil, LATAM Airlines Peru, LATAM Airlines Paraguay and LATAM Airlines Colombia, “LATAM”);

TAM Linhas Aéreas S.A., a sociedade anónima organized under the laws of Brazil, having its principal office at Avenida Jurandir 856, Hangar VII, 2° andar, Jardim Ceci, Sao Paulo, Brazil (“LATAM Airlines Brasil”);

LATAM Airlines Perú S.A., a sociedad anónima organized under the laws of Peru, having its principal office at Avenida Andrés Reyes 338, Piso 6, San Isidro, Lima, Perú (“LATAM Airlines Peru”);

Transportes Aereos del Mercosur S.A., a company organized under the laws of Paraguay, having its registered offices at Hangar TAM, Aeropuerto Silvio Pettirossi, Luque, Paraguay (“LATAM Airlines Paraguay”); and

Aerovías de Integración Regional, Aires S.A., d/b/a LATAM Airlines Colombia, a sociedad anónima organized under the laws of Colombia, having its principal office at Cra 11B No. 99-25, Piso 14, Bogota, Colombia (“LATAM Airlines Colombia”).

In this Agreement, Delta and LATAM are together referred to as the “Parties” and each a “Party”. LATAM Airlines, LATAM Airlines Brasil, LATAM Airlines Peru, LATAM Airlines Paraguay and LATAM Airlines Colombia are each individually referred to as a “LATAM Affiliate” and together the “LATAM Affiliates”. In this Agreement, Delta shall act as a single party and have rights and obligations as a single party and all of the LATAM Affiliates shall act jointly as a single party, have rights and obligations as a single party, and each shall be jointly and severally liable for the obligations and liabilities of the other LATAM Affiliates.

RECITALS

WHEREAS, Delta and LATAM Airlines are parties to that certain Framework Agreement dated as of September 26, 2019 (the “Framework Agreement”), pursuant to which such Parties agreed to enter into a strategic alliance with respect to the Parties’ scheduled air transportation services on routings between the U.S./Canada and certain countries in South America, as set forth in the Framework Agreement;

WHEREAS, Delta and LATAM desire to establish a long-term metal-neutral contractual joint venture arrangement that links the Parties’ networks and enables the Parties to market integrated air transportation services as a single competitor within the scope of the Joint Venture to the extent set forth herein in order to deliver robust consumer benefits through expanded capacity, greater consumer choice, and joint investments in the customer experience;

WHEREAS, each of Delta and LATAM has determined that, in order to give effect to the objective of their broader agreement to operate an integrated and coordinated efficiency-enhancing Joint Venture, it is necessary to coordinate pricing and supply of services and allocate sales, routes, customers and markets as a single competitor exercising joint decision-making within the scope of the Joint Venture, all as contemplated by this Agreement, with each of the LATAM Affiliates (with respect to the markets served by it) participating in the Joint Venture on behalf of LATAM while maintaining such LATAM Affiliate as an independent certificated air carrier domiciled in its own home country;

WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions on which (i) promptly following the date of this Agreement the Parties will seek to obtain all Required Approvals, and (ii) following receipt of such approvals and subject to the satisfaction of the conditions set forth herein, the Parties will implement the Joint Venture and the commercial cooperation arrangements contemplated hereby, all on the terms and conditions set forth in this Agreement and the Implementing Agreements; and

WHEREAS, in addition to this Agreement and without prejudice to the rights and obligations of Delta and each LATAM Affiliate set forth herein, Delta, LATAM Airlines and the relevant LATAM Affiliates have entered into or will enter into one or more country-specific Joint Venture Implementing Agreements (each, a “Country JV Implementing Agreement” and, collectively, the “Country JV Implementing Agreements”) containing certain of the provisions contained herein which are applicable to the Joint Venture activities relative to such country and JV Routings between the U.S./Canada and such country.

IN WITNESS WHEREOF, for and in consideration of the premises and mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions

All capitalized terms used but not defined herein shall have the meanings given such terms in Schedule A attached hereto.

ARTICLE 2

JOINT VENTURE IMPLEMENTATION

Section 2.1 Implementing Agreements

2.1.1 Promptly following the date of this Agreement, Delta and LATAM shall diligently and in good faith (i) amend or amend and restate those Implementing Agreements that exist between the Parties as of the date hereof to incorporate the changes contemplated by this Agreement and such other provisions as may be mutually agreed by the Parties, and (ii) negotiate the terms of those Implementing Agreements that are not currently in effect between the Parties. Subject to Section 2.3.1.5, on or before the Implementation Date, Delta and the applicable LATAM Affiliates shall execute and deliver each of the Implementing Agreements.

Section 2.2 Implementation of Joint Venture

2.2.1 Following the date of this Agreement and subject to compliance with Applicable Law, the Parties shall meet to discuss and develop specific plans and timelines for implementation of the Joint Venture and the arrangements contemplated by this Agreement. Subject to Section 9.1, each Party shall in good faith use its commercially reasonable efforts to assist and cooperate with the other Party in taking all commercially reasonable actions necessary, proper or advisable under Applicable Law to prepare for and to implement the Joint Venture in accordance with this Section 2.2.

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2.2.2 Implementation of the Joint Venture shall be subject to the satisfaction of all of the conditions precedent set forth in Section 2.3. Effective as of the first calendar day of the first calendar month following the satisfaction of all of the conditions precedent set forth in Section 2.3 (or such other date mutually agreed by the Parties), the Parties shall implement the Joint Venture on the terms and conditions set forth herein (the date on which the Joint Venture is implemented in accordance with this Agreement being the “Implementation Date”).

Section 2.3 Conditions Precedent

2.3.1 The respective obligations of each of the Parties to implement the Joint Venture shall be subject to the satisfaction (or waiver by both Parties in writing) of each of the following conditions:

2.3.1.1 U.S. Antitrust Immunity and the other Required Approvals shall have been obtained without any condition, limitation, restriction or obligation (except to the extent expressly set forth in Section 2.3(e) of the Framework Agreement); provided that if all Required Approvals by Competent Authorities in the United States and Brazil (and in Peru if required by Applicable Law) have been obtained (in each case without any such condition, limitation, restriction or obligation), the Parties may mutually agree to proceed with implementation of the Joint Venture with respect to such countries pending receipt of Required Approvals by Competent Authorities in any country or territory other than such countries;

2.3.1.2 No judgment, order, injunction (whether temporary, preliminary or permanent), decree, statute, law, ordinance, rule or regulation, or other legal restraint or prohibition entered, enacted, promulgated, enforced or issued by any Competent Authority shall be in effect that makes illegal or prohibits the implementation of the Joint Venture or any of the arrangements contemplated under this Agreement or any Implementing Agreement;

2.3.1.3 Delta and LATAM shall have entered into an amendment to this Agreement to (i) replace Schedule B with the mutually agreed Cargo Cooperation Implementation Plan pursuant to Section 6.12; (ii) replace Schedule C with a final version of such Schedule that includes further details regarding those items where mutual agreement of the Parties is required prior to the Implementation Date; and (iii) make such other required changes to this Agreement as may be mutually agreed by the Parties;

2.3.1.4 Delta and LATAM shall have mutually agreed in writing to (i) the Initial Network Plan pursuant to Section 5.1.1, (ii) the proration methodology to be implemented between the Parties pursuant to Section 6.4.5 and (iii) changes to the ISC and the Codeshare commissions set forth in the Codeshare Agreements to be implemented pursuant to Section 6.4.6, and such agreed terms described in the foregoing clause (ii) and (iii) shall be documented in amendments to the Special Prorate Agreement and the Codeshare Agreements (as applicable); and

2.3.1.5 Each of the Implementing Agreements shall have been finalized in form and substance mutually agreed by the Parties.

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ARTICLE 9

REGULATORY APPROVALS

Section 9.1 Regulatory Approvals

Each Party agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Party in order to promptly obtain the Required Approvals, in each case with respect to the Joint Venture and the commercial coordination contemplated under this Agreement, all as further set forth in Section 2.3 of the Framework Agreement. Notwithstanding anything set forth herein, neither Delta nor LATAM shall have any obligation to agree to any condition or restriction with respect to its operations, assets, business or properties (whether or not relating to the Joint Venture) in order to obtain such approvals, except to the extent set forth in Section 2.3 of the Framework Agreement.

Section 9.2 Changes in Applicable Law

In the event that during the Term there is any change in Applicable Law (including binding interpretations thereof by any Competent Authority) that prevents either Party from carrying out the arrangements contemplated by this Agreement or any Implementing Agreement, or attaches a condition, limitation, restriction or obligation which, individually or in the aggregate, would reasonably be expected to be material to the Joint Venture, the Joint Venture Operations of either Party, the Scheduled Services operated by either Party, or its Affiliates or Contract Carriers on a JV Routing, or a Party’s business or operations outside the scope of the Joint Venture, the Parties will consult with each other within days after the occurrence of any such event. The purpose of such consultation will be to assess such change in Applicable Law, and to seek mutual agreement as to what, if any, changes to this Agreement or any Implementing Agreement are necessary or appropriate as a result of such change in Applicable Law.

ARTICLE 10
REPRESENTATIONS AND WARRANTIES

Section 10.1 Representations and Warranties by Delta

Delta represents and warrants to LATAM that the statements contained in this Section 10.1 are true and correct as of the date of this Agreement and as of the Implementation Date (except to the extent expressly relating to a specific date, in which event it shall be true and correct as of such date).

10.1.1 Organization and Qualification. Delta is a duly incorporated and validly existing corporation, in good standing under the laws of Delaware, is an air carrier duly authorized to act as such by the government of the United States, and holds all licenses, certificates and permits from all governmental and regulatory authorities necessary to perform its obligations hereunder. Delta has the requisite corporate power and authority to own, operate and lease the properties and assets it now owns, operates and leases, to conduct its business as it is now being conducted and to enter into this Agreement and each Implementing Agreement.

10.1.2 Authority. The execution, delivery and performance by Delta of this Agreement and each Implementing Agreement have been duly authorized by all necessary corporate action. This Agreement and each Implementing Agreement have been duly executed and delivered by Delta, and, assuming due authorization, execution and delivery by LATAM, constitutes the legal, valid and binding obligation of Delta, enforceable against Delta in accordance with the terms and conditions hereof and thereof, except as may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights generally, or by equitable principles, whether applied in a proceeding in equity or law.

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10.1.3 No Violation. Neither the execution nor the delivery by Delta of this Agreement or any Implementing Agreement nor Delta’s performance of its obligations hereunder or thereunder will: (a) contravene or conflict with or cause a default under (1) any Applicable Law binding on Delta, or (2) any provision of the Certificate of Incorporation or the Bylaws of Delta; (b) result in the creation of any lien on any asset of Delta; or (c) result in the material breach of any agreement or instrument to which Delta is a party or by which it is bound.

10.1.4 No Approvals. Except for the Required Approvals, neither the execution or delivery by Delta of this Agreement or any Implementing Agreement nor Delta’s performance of its obligations hereunder or thereunder requires the consent or approval of, or the giving of notice to, the registration with, the recording or filing of any documents with, or the taking of any other action in respect of (a) any Competent Authority (provided that the representation with respect to this clause (a) is made to the best of Delta’s knowledge), or (b) any trustee or holder of any indebtedness or any obligation of Delta, any stockholder of Delta, or any other person or entity having a contractual relationship with Delta.

10.1.5 No Brokers. Delta has not employed any broker, agent or finder in connection with this Agreement or any transaction contemplated hereby, and Delta is not obligated to pay any commission, finder’s fee or other similar fee to any such party with respect thereto.

10.1.6 Reference Period Passenger and Cargo Contribution. The calculation of Delta’s Passenger and Cargo Contribution for the Reference Period set forth in Schedule C, as and when finalized in accordance with Section 7.2.2, and all financial, operational, and other information underlying such calculations will be true and correct in all material respects and can be reconciled to the applicable revenue and cost information set forth in Delta’s Financial Systems for such period.

Section 10.2 Representations and Warranties by LATAM

LATAM represents and warrants to Delta that the statements contained in this Section 10.2 are true and correct as of the date of this Agreement and as of the Implementation Date (except to the extent expressly relating to a specific date, in which event it shall be true and correct as of such date).

10.2.1 Organization and Qualification. Each LATAM Affiliate is a duly incorporated and validly existing corporation, in good standing under the laws of the country of its incorporation, is an air carrier duly authorized to act as such by the government of such country, and holds all licenses, certificates and permits from all governmental and regulatory authorities necessary to perform its obligations hereunder. Each LATAM Affiliate has the requisite corporate power and authority to own, operate and lease the properties and assets it now owns, operates and leases, and to conduct its business as it is now being conducted, and to enter into this Agreement and each Implementing Agreement.

10.2.2 Authority. The execution, delivery and performance by each LATAM Affiliate of this Agreement and each Implementing Agreement have been duly authorized by all necessary corporate action. This Agreement and each Implementing Agreement have been duly executed and delivered by each LATAM Affiliate, and, assuming due authorization, execution and delivery by Delta, constitutes the legal, valid and binding obligation of such LATAM Affiliate, enforceable against such LATAM Affiliate in accordance with the terms and conditions hereof and thereof, except as may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights generally, or by equitable principles, whether applied in a proceeding in equity or law.

10.2.3 No Violation. Neither the execution nor the delivery by each LATAM Affiliate of this Agreement or any Implementing Agreement nor the performance of such LATAM Affiliate’s obligations hereunder or thereunder will: (a) contravene or conflict with or cause a default under (1) any Applicable Law binding on such LATAM Affiliate, or (2) any provision of the Certificate of Incorporation or the articles of association or bylaws of such LATAM Affiliate; (b) result in the creation of any lien on any asset of such LATAM Affiliate; or (c) result in the material breach of any agreement or instrument to which such LATAM Affiliate is a party or by which it is bound.

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10.2.4 No Approvals. Except for the Required Approvals, neither the execution or delivery by any LATAM Affiliate of this Agreement or any Implementing Agreement nor the performance of such LATAM Affiliate’s obligations hereunder or thereunder requires the consent or approval of, or the giving of notice to, the registration with, the recording or filing of any documents with, or the taking of any other action in respect of, (a) any Competent Authority (provided that the representation with respect to this clause (a) is made to the best of LATAM’s knowledge), or (b) any trustee or holder of any indebtedness or any obligation of any LATAM Affiliate, any stockholder of any LATAM Affiliate, or any other person or entity having a contractual relationship with any LATAM Affiliate.

10.2.5 No Brokers. No LATAM Affiliate has employed any broker, agent or finder in connection with this Agreement or any transaction contemplated hereby, and no LATAM Affiliate is obligated to pay any commission, finder’s fee or other similar fee to any such party with respect thereto.

10.2.6 Reference Period Passenger and Cargo Contribution. The calculation of LATAM’s Passenger and Cargo Contribution for the Reference Period set forth in Schedule C, as and when finalized in accordance with Section 7.2.2, and all financial, operational and other information underlying such calculations will be true and correct in all material respects and can be reconciled to the applicable revenue and cost information set forth in LATAM’s Financial Systems for such period.

ARTICLE 11

TERM AND TERMINATION; LIQUIDATED DAMAGES

Section 11.1 Term

This Agreement shall become effective on the date of this Agreement and shall continue in effect unless terminated by either Party in accordance with this Article 11 (the “Term”). Either Party may terminate this Agreement for any reason, with or without cause, by providing at least months’ prior written notice to the other Party; provided that, except as set forth in Section 11.2, any such termination shall not be effective prior to the anniversary of the Implementation Date.

Section 11.2 Termination

Notwithstanding Section 11.1, this Agreement may be terminated as follows:

11.2.1 By mutual written agreement of the Parties;

11.2.2 By written notice of either Party if the Implementation Date has not occurred on or before ; provided, however, that the right to terminate this Agreement under this Section 11.2.2 shall not be available to a Party if such failure of the Implementation Date to have occurred on or before such date is the result of a breach of this Agreement by such Party or the failure of any representation or warranty of such Party contained in this Agreement to be true and correct;

11.2.3 By written notice of the non-defaulting Party in the event of a Material Default of this Agreement by the defaulting Party that has not been cured within days after receipt by such Party of written notice of such Material Default, which notice describes in reasonable detail the basis for such Material Default; provided that to the extent the Material Default is incapable of being cured within

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in accordance with Section 12.3) incurred by any Indemnified Party (collectively, “Losses”) in connection with a claim asserted, or the commencement of any legal proceeding, whether groundless or not, by a third party relating to or arising out of:

12.2.1.1 a breach by the Indemnifying Party of any representation or warranty provided hereunder or under any Implementing Agreement;

12.2.1.2 a failure by the Indemnifying Party to perform its obligations hereunder or under any Implementing Agreement;

12.2.1.3 a claim that this Agreement or any Implementing Agreement conflicts with, contravenes, or will cause a breach or violation of, any agreement or instrument to which the Indemnifying Party is a party or by which it is bound; or

12.2.1.4 an Operational Claim arising out of or relating to the Indemnifying Party’s operations with respect to the Joint Venture;

except in each case to the extent arising out of or relating to the gross negligence or willful misconduct of, or breach of its obligations under this Agreement or any Implementing Agreement by, the other Party or any Indemnified Party.

Section 12.3 Indemnification Procedures

12.3.1 Upon receipt by an Indemnified Party of notice of a claim, or the commencement of any legal proceeding, by a third party that would reasonably give rise to an obligation to provide indemnification pursuant to this Article 12 (a “Claim”), the Indemnified Party shall give the Indemnifying Party prompt written notice thereof (the “Claim Notice”); provided, however, that the failure of the Indemnified Party to do so shall not prevent any Indemnified Party from being indemnified for any Losses except to the extent that the failure to provide such prompt written notice materially damages or materially prejudices the Indemnifying Party’s ability to defend against such Claim. Any Claim Notice shall set forth a description in reasonable detail of the basis for such Claim. The Indemnified Party shall enclose with the Claim Notice a copy of all papers served with respect to such Claim, if any, and any other documents reasonably evidencing such Claim.

12.3.2 In the event the Indemnifying Party receives a Claim Notice pursuant to Section 12.3.1, the Indemnifying Party shall notify the Indemnified Party within Business Days after its receipt of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under Section 12.2. If the Indemnifying Party confirms in writing to the Indemnified Party within Business Days after receipt of the Claim Notice the Indemnifying Party’s responsibility to indemnify, defend and hold harmless the Indemnified Party therefor, the Indemnifying Party may elect to assume control over the compromise or defense of such Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, which counsel will be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over the compromise and defense of such Claim, the Indemnifying Party shall within such Business Days (or sooner, if the nature of the asserted Claim so requires) notify the Indemnified Party of such Indemnifying Party’s intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Claim; provided, however, that: (i) the Indemnified Party may, if such Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist and participate in the handling (but not control the defense) of any Claim; (ii) the Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to any Claim; and (iii) the Indemnifying Party will not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment in any pending or threatened legal proceeding in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is a party to such legal proceeding), (A) unless such settlement, compromise or consent by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Claim and includes a complete and unconditional release of all Indemnified Parties from all liability arising out of such Claim or legal proceeding as well as no admission of wrongdoing on behalf of any Indemnified Party, and (B) to the extent such judgment, compromise, consent or settlement provides for equitable relief that adversely effects an Indemnified Party.

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12.3.3 Notwithstanding anything contained herein to the contrary, the Indemnifying Party shall not be entitled to have, subject to this Article 12, control over (and if it so desires, the Indemnified Party shall have, subject to this Article 12, control over) the defense, settlement, adjustment or compromise of (but, subject to this Article 12, the Indemnifying Party shall nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with such defense, settlement or compromise if and to the extent liable under the terms of this Article 12): (i) any Claim that seeks an order, injunction or other equitable relief against any Indemnified Party or any of its Affiliates; (ii) any Claim in which both the Indemnifying Party and the Indemnified Party are named as parties and either the Indemnifying Party or the Indemnified Party determines in its reasonable judgment with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that an actual or potential conflict of interest between such parties may exist in respect of such legal proceeding; or (iii) any Claim in which the Indemnifying Party does not elect or is otherwise not permitted to assume control or, after assuming such control, fails to diligently defend against such Claim in good faith (it being agreed that settlement of such Claim in accordance with this Article 12 does not constitute such a failure to defend); provided, however, that no Indemnified Party will, without Business Days prior written notice to the Indemnifying Party, settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnifying Party is a party to such action).

12.3.4 In the event that an Indemnifying Party is prevented from assuming the defense due to clauses (i) or (ii) of Section 12.3.3, the following shall apply (i) the Indemnifying Party may, if such Indemnifying Party so desires, employ counsel at such Indemnifying Party’s own expense to assist and participate in the handling (but not control the defense) of any Claim; (ii) the Indemnified Party shall keep the Indemnifying Party advised of all material events with respect to such Claim; and (iii) the Indemnified Party shall diligently defend in good faith (it being agreed that settlement of such Claim does not constitute a failure to defend) such Claim.

12.3.5 In the event that the Indemnifying Party did not elect to assume the defense, or is otherwise prohibited from assuming the defense, of such Claim in accordance with Section 12.3.2 and subsequent to the time periods set forth in Section 12.3.2, the Indemnifying Party (A) confirms in writing to the Indemnified Party the Indemnifying Party’s responsibility to indemnify, defend and hold harmless the Indemnified Party therefore, and (B) reimburses the Indemnified Party for all out-of-pocket Losses theretofore incurred by such Indemnified Party with respect to such Claim, then the Indemnifying Party shall be entitled to assume control over the compromise or defense of such Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, which counsel will be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over the compromise and defense of such Claim, the Indemnifying Party shall provide the Indemnified Party written notice of such Indemnifying Party’s intent to do so, and the Indemnified Party shall and shall cause each of its Affiliates to cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Claim; provided, however, that: (i) the Indemnified Party may, if such Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist and participate in the handling (but not control the defense) of any Claim; (ii) the Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to any such Claim; and (iii) no Indemnifying Party will, without the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment in any pending or threatened legal proceeding in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Party is a party to such legal proceeding), (A) unless such settlement, compromise or consent by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Claim and includes a complete and unconditional release of all such Indemnified Parties from all liability arising out of such claim or legal proceeding as well as no admission of wrongdoing on behalf of the Indemnified Parties, and (B) to the extent such judgment, compromise, consent or settlement provides for equitable relief which adversely effects an Indemnified Party.

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12.3.6 In connection with any defense of a Claim (whether by the Indemnifying Parties or the Indemnified Parties), each Party shall cooperate in the defense or prosecution thereof and in good faith retain and furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by the other Party in connection therewith.

Section 12.4 Indemnification Payment

If any Indemnified Party becomes entitled to indemnification from an Indemnifying Party pursuant to this Agreement, such indemnification payment will be made in cash (in United States Dollars) upon demand.

ARTICLE 13
LIMITATION OF LIABILITY

Section 13.1 Limitation of Liability

13.1.1Without prejudice to any liability for breach of any representation or warranty set forth herein or any claim of fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement or any Implementing Agreement are pursuant to this Agreement, and for the avoidance of doubt and without limitation, neither Party has any right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence).

13.1.2 EXCEPT AS PROVIDED IN SECTION 13.1.3, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROSPECTIVE ECONOMIC ADVANTAGE, LOST REVENUE, LOST PROFITS, ANTICIPATED SAVINGS OR GOODWILL ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY IMPLEMENTING AGREEMENT, OR ANY TERMINATION OF THIS AGREEMENT OR ANY IMPLEMENTING AGREEMENT, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE OF SUCH DAMAGES, AND WHETHER OR NOT BASED ON CONTRACT, TORT, WARRANTY CLAIMS OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY IMPLEMENTING AGREEMENT AND/OR THE PRODUCT, OR SERVICES PROVIDED THEREUNDER, AND EXCEPT AS PROVIDED IN SECTION 13.1.3, EACH PARTY HEREBY RELEASES AND WAIVES ANY CLAIMS AGAINST THE OTHER PARTY REGARDING SUCH DAMAGES. ACCORDINGLY, EXCEPT AS PROVIDED IN SECTION 13.1.3, A PARTY MAY ONLY RECOVER ANY ACTUAL, DIRECT AND IDENTIFIABLE DAMAGES WITH RESPECT TO SUCH MATTERS OR LIQUIDATED DAMAGES IN ACCORDANCE WITH THE PROVISIONS HEREOF.

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Section 14.2 Use of Confidential Information

14.2.1 The Recipient agrees that it shall use the Confidential Information of the Discloser solely in connection with the Joint Venture, any activities related thereto, and the Parties’ Joint Venture Operations and for no other purpose, and it will not disclose or otherwise make available such Confidential Information in any manner to any Person other than the Recipient’s Representatives, except (i) with the consent of the Discloser, (ii) as may be required to obtain the Required Approvals necessary to implement this Agreement so long as any such disclosure includes a request for confidential treatment in accordance with Applicable Law, and (iii) as otherwise required by Applicable Law.

14.2.2 In the event that the Recipient is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information of the Discloser or both Parties, the Recipient shall, to the extent permitted by Applicable Law, provide the Discloser with prompt written notice of any such request or requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Article 14. If, in the absence of a protection order or other remedy or the receipt of a waiver by the Discloser, the Recipient is nonetheless, after consultation with legal counsel, required to disclose such Confidential Information, the Recipient may, without liability hereunder, disclose only that portion of the Confidential Information which is legally required to be disclosed; provided that the Recipient uses its reasonable best efforts at the Discloser’s request and expense to preserve the confidentiality of the Confidential Information, including by cooperating with the Discloser at the Discloser’s request and expense to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.

14.2.3 Each Party shall be responsible for any breach by its Representatives of the provisions set forth in this Article 14.

Section 14.3 Termination

14.3.1 Upon termination of this Agreement, each Party shall, within days after such expiration or termination, either deliver to the other Party, or destroy, all of the other Party’s Confidential Information (including all copies thereof, other than copies of this Agreement) then in its possession and shall purge all copies thereof encoded or stored on magnetic or other electronic media or processors; provided, however, that neither Party shall be required to purge or destroy any Confidential Information for so long as such Confidential Information is reasonably necessary for the continued administration and operation of its respective business or operations or is reasonably necessary in connection with the resolution of any disputes which may have at the time arisen pursuant to the terms of this Agreement or is required in connection with any Implementing Agreement which continues following termination of this Agreement; provided, further, that any Confidential Information not purged or destroyed pursuant to the preceding proviso shall be purged or destroyed as soon as it is no longer reasonably necessary for such purposes; and provided, further, that each Party may retain specified information as may otherwise be provided in this Agreement.

14.3.2 Notwithstanding Section 14.3.1, if it is not feasible for a Party to deliver or destroy any portion of the other Party’s Confidential Information required to be delivered or destroyed under the foregoing provisions of this Section 14.3 because of non-segregable melding of such information that would be harmful to such Party’s operations, or where it is otherwise impracticable to destroy such Confidential Information, then such Party will not be obligated to deliver or destroy such Confidential Information, but such Party will notify and identify to the other Party (with as much specificity as is reasonably practicable) the Confidential Information which is incapable of being delivered or destroyed and may retain such Confidential Information, subject always to the duties of confidentiality in respect of such Confidential Information contained in this Article 14.

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ARTICLE 15

DATA SECURITY AND PRIVACY; PROPRIETARY RIGHTS

Section 15.1 Data Security and Privacy

During the Term and thereafter for so long as either Party maintains in its possession or control any personal data of the other Party, each such Party shall comply with the provisions of the Data Security and Processing Agreement as it relates to such data.

Section 15.2 Proprietary Rights

15.2.1 General. The Parties acknowledge and agree that each of them and their respective Affiliates have invested significant resources into developing, establishing, and maintaining their respective tangible and intangible proprietary assets. This Section 15.2 sets forth the relative rights and obligations of the Parties with respect to such assets in the context of the activities contemplated by this Agreement. In the event of a conflict between this Section 15.2 and other provisions of this Agreement or any Implementing Agreement, the provisions of this Section 15.2 shall control.

15.2.2 Ownership of Intellectual Property; Improvements. Except for the rights expressly granted in this Section 15.2 or pursuant to a separate written agreement between the Parties, each Party retains all of its right, title and interest in and to all of its Intellectual Property and that of its Affiliates, and nothing in this Agreement or the arrangements contemplated hereby shall transfer or convey to the other Party any right, title or interest in such Intellectual Property. Each Party shall use commercially reasonable efforts to refrain from taking any action that infringes, jeopardizes, undermines or reduces the value of, or in any way dilutes, the other Party’s ownership of or other rights in its Intellectual Property. Except as expressly set forth in this Section 15.2, no license, either express or implied, is granted by a Party under this Agreement to use its Intellectual Property, and if any such license is granted by one Party to the other in the future, it shall be memorialized in writing between the Parties identifying the specific Intellectual Property of a Party subject to such license. The Parties do not intend to jointly develop or create any Intellectual Property under or in connection with this Agreement, and if the Parties at any time anticipate doing so, before creating any such joint Intellectual Property, they will negotiate in good faith a separate, written understanding regarding the joint development of such Intellectual Property.

15.2.3 Marks.

15.2.3.1 Neither Party will, without the other Party’s prior written consent in each instance, (i) use in advertising, publicity or marketing communications of any kind the name or Marks of the other Party, or (ii) represent, directly or indirectly, that any product or service provided by a Party has been approved or endorsed by the other Party. Each Party grants to the other Party a right and license to use the other Party’s Marks for the purpose of promoting the activities contemplated by this Agreement or any Implementing Agreement subject to the following conditions:

| (i) | each Party agrees to use the Marks of the other Party only as approved in writing by such other Party;

| (ii) | each Party agrees that the use of the other Party’s Marks shall not be derogatory nor likely to bring the same into disrepute;

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| (iii) | each Party agrees that any and all rights or goodwill arising as a result of the use of the other Party’s Marks shall inure solely to the benefit of such other Party;

| (iv) | each Party shall, in all cases, be the sole judge in determining the acceptability of both the quality and presentation of advertising and promotional materials using its Marks;

| (v) | each Party agrees that it will not assert, directly or indirectly, any right, title, or interest in, or to, the other Party’s Marks or register or attempt to register any trademarks, trade names or other proprietary indicia confusingly similar to the Marks of the other Party;

| (vi) | the use of a Party’s Marks in conjunction with the other Party’s Marks shall not create a unitary or composite mark;

| (vii) | each Party shall cooperate with each other Party in controlling and protecting such other Party’s Marks and the goodwill attached thereto by reproducing appropriate trademark or copyright notices as requested by such other Party in writing;

| (viii) | if a Party identifies a suspected infringement of the other Party’s Marks by a third party, such Party will promptly notify the other Party and provide pertinent details regarding the suspected infringement; and

| (ix) | each Party shall have the exclusive right to sue or take other action against infringers of its Marks, and the other Party shall not have any claim to the proceeds (or any portion thereof) of any such lawsuits or other actions or settlements related thereto but such other Party shall, upon the request of such Party and at such Party’s reasonable expense, reasonably assist such Party in the investigation of, and any legal action related to, any such infringement.

15.2.3.2 Upon termination of this Agreement, each Party shall immediately discontinue any and all use of the other Party’s Marks and shall not thereafter use any expression in connection with any business in which such Party may thereafter be engaged which, in the reasonable judgment of the other Party so nearly resembles its Marks as may be likely to lead to confusion or uncertainty on the part of the public. Notwithstanding the foregoing, the Parties acknowledge that materials incorporating the other Party’s Marks placed in circulation while the Agreement is in effect, including but not limited to materials posted to social media sites during such period, may remain in circulation following the termination of this Agreement, that such post-termination circulation shall not be a breach of the provisions of this Section 15.2, and that a Party shall not be required to recall or remove any materials incorporating the other Party’s Marks that are no longer within such Party’s possession, custody or control.

15.2.4 Termination. Upon termination of this Agreement, the rights granted under this Section 15.2 shall cease, and each Party shall, within days after such expiration or termination, return to the other Party such Intellectual Property of the other Party then in its possession or control and shall, except where otherwise required by Applicable Law or as contemplated by the last sentence of Section 15.2.3.2, purge all copies thereof encoded or stored on magnetic or other electronic media or processors.

15.2.5 Affiliates; Contractors. Delta and LATAM shall each cause their respective Affiliates, Representatives and contractors to abide by the terms set forth in this Section 15.2.

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ARTICLE 16
MISCELLANEOUS

Section 16.1 Notices

All notices, reports, approvals, consents and other communications required or permitted hereunder to be given to or made upon a Party shall be in writing and shall be considered as properly given if addressed as provided below and delivered (i) by hand, (ii) by overnight courier service, (iii) by certified or registered mail, or (iv) with respect to notices to the CEOs, Leadership Team and Working Groups, by e-mail. Unless otherwise provided herein, any notice or other document delivered hereunder shall be deemed to have been delivered upon receipt, or (A) if sent by email, on the date of the generation of the receipt notice by the recipient’s server or a written response from the recipient, or (B) if received after the close of normal business hours in the place of delivery, on the immediately succeeding Business Day in such place. For the purposes of notice, the addresses of the Parties shall be as set forth below; provided, however, that a Party shall have the right to change its address for notice to any other location by giving at least Business Days’ prior written notice to the other Party in the manner set forth in this Section 16.1.

For Delta:

Delta Air Lines, Inc.

1030 Delta Boulevard

Department 761

Atlanta, GA 30320, USA

Attention: Senior Vice President – Alliances

Phone: +1-404 715-2874

E-mail: perry.cantarutti@delta.com

with a copy to:

Delta Air Lines, Inc.

1030 Delta Boulevard

Department 981

Atlanta, GA 30320, USA

Attention: Chief Legal Officer

Phone: +1-404-715-5747

E-mail: peter.carter@delta.com

For LATAM:

LATAM Airlines Group S.A.

Presidente Riesco 5711, 17th floor

Las Condes, Santiago, Chile

Attention: Senior Vice President – Strategic Alliances

E-mail: soledad.berrios@latam.com

with a copy to:

LATAM Airlines Group S.A.

Presidente Riesco 5711, 19th floor

Las Condes, Santiago, Chile

Attention: Chief Legal Officer

E-mail: jmencio@latam.com

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Section 16.2 Amendments

This Agreement may be amended or modified only by a written instrument duly executed and delivered by or on behalf of each Party.

Section 16.3 Taxes

16.3.1 Payment of Taxes. Each Party shall be responsible for the payment of any and all taxes payable under Applicable Law based upon or measured by its gross or net income or gross or net receipts. The Parties shall continue to be responsible for the payment of any taxes that they would otherwise pay if the Joint Venture arrangement did not exist. This Agreement does not change the obligation or liability of either Party to timely collect and remit any fees and taxes required to be collected from passengers in connection with the sale of air transportation, including transportation taxes, government user fees, value-added taxes, security fees or other taxes or government imposed fees.

16.3.2 Tax Treatment. Nothing in this Agreement is intended or shall be construed to constitute a transfer of any assets or create or establish any partnership, joint venture or any other separate incorporated or unincorporated entity or fiduciary relationship between the Parties for tax purposes in the U.S., Canada, any country in South America or any other country where provisions of this Agreement may need to be implemented. Further, unless required by Applicable Law, no Party will make any tax election, file a declaration and/or statement or tax return which is or may be construed to be inconsistent with the intent of both Parties to not create a partnership or other entity for tax purposes in any jurisdiction (whether national, provincial, state or local subdivision) in any country. The Parties shall promptly consult from time to time with respect to appropriate disclosure by the Parties and in response to any tax audit in which tax aspects of this Agreement are subject to review. The Parties hereby acknowledge and agree that, for income tax purposes, the Parties believe that any income resulting from any Cash Settlement under this Agreement constitutes income derived from the international operation of aircraft.

16.3.3 Tax Withholding. All payments under this Agreement shall be made free and clear and without deduction or withholding on account of taxes except to the extent any such deduction or withholding is required under Applicable Law, in which event no gross-up payment in regard to any amount so deducted or withheld shall be required. In the event that the Paying Party is required by Applicable Law to deduct or withhold tax from any payment under this Agreement, such Paying Party shall (A) promptly notify the Receiving Party of such requirement and the legal basis thereof; (B) pay to the relevant taxing authorities the amount so deducted or withheld; and (C) provide the Receiving Party a tax receipt or tax certificate evidencing payment to such authorities; provided that, before making any such deduction or withholding, the Paying Party shall give the Receiving Party notice of the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a reasonably period of time before such deduction or withholding is required, in order for such Receiving Party to obtain reduction of or relief from such deduction or withholding). Each Party agrees to cooperate, and cause its Affiliates to cooperate, with the other Party in claiming refunds or exemptions from such deductions or withholdings to the extent permitted under Applicable Law, including under any relevant agreement or treaty which is in effect. In the event that a liability is imposed by a taxing authority upon the Paying Party in respect of a failure to withhold U.S. federal, state, or local taxes on an amount payable or allocable to the Receiving Party under this Agreement, the Receiving Party shall indemnify and hold harmless the Paying Party from any and all liabilities, claims and losses with respect to such failure to withhold, provided that (i) the Paying Party shall notify the Receiving Party promptly upon the receipt of any claim from a taxing authority which might give rise to an indemnification under this Section 16.3.4 (although the Paying Party’s delay in promptly notifying the Receiving Party shall only reduce the Receiving Party’s liability to indemnify the Paying Party to the extent that the Receiving Party is prejudiced by such delay); (ii) the Receiving Party shall be entitled to participate, at its own expense, and with counsel of its choosing, in the defense of any claim which may give rise to liability under this Section 16.3.4; (iii) the Paying Party may not settle any liability with a taxing authority to the extent such settlement would create a liability for the Receiving Party under this Section 16.3.4 without the prior written consent of the Receiving Party, which consent will not be unreasonably withheld, conditioned or delayed.

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16.3.4 Tax Documentation. Each Party has provided a properly completed and duly executed IRS Form W-9 or applicable Form W-8 to the other Party. Each Party and any other recipient of payments under this Agreement shall provide to the other Party at the time or times reasonably requested by such other Party or as required by Applicable Law, such properly completed and duly executed documentation (for example, IRS Forms W-8 or W-9) in the form required by the relevant tax authorities as will permit payments made under this Agreement to be made without or at a reduced rate of withholding for taxes.

16.3.5 Indirect Taxes. All references in this Agreement to payments between the Parties are references to such payment exclusive of sales, use, value-added, consumption and other similar taxes, including interest and penalties thereon (collectively, “Indirect Taxes”) chargeable in respect of the supply of goods or services for which payment has been made, or consideration is deemed to be made. The Party making such payment shall be liable for and shall pay any such Indirect Taxes. Any refund or credit in respect of any such Indirect Taxes shall be for the benefit of the Party bearing the cost of such Indirect Taxes as set forth herein. The Parties shall cooperate and shall cause their respective Affiliates to cooperate in accordance with Applicable Law, including providing such information and documents as reasonably requested by the other Party to minimize any Indirect Taxes in accordance with Applicable Law and to claim any refund or credit in respect of Indirect Taxes incurred in connection with payments made under this Agreement.

16.3.6 Cooperation. Each Party agrees to consult with the other Party prior to, or prior to any of such Party’s Affiliates, seeking any formal or informal tax ruling from, or disclosing any tax opinion or other material tax advice with respect to this Agreement to, any governmental taxing authority. Each Party shall promptly notify the other Party upon receipt of written notice of any inquiries, claims, assessments, audits or similar events with respect to taxes relating to this Agreement (any such inquiry, claim, assessment, audit or similar event, a “Tax Matter”). Except as provided in Section 16.3.4, each Party shall have sole control of the conduct of and retain the rights and obligations (if any) as are provided for under any Applicable Law with respect to any Tax Matter in respect of such Party’s tax returns (the “Controlling Party”), provided that the Controlling Party shall keep the other Party reasonably informed of the progress of any Tax Matter and shall not bind the other Party with respect to any Tax Matter. The non-Controlling Party shall cooperate with the Controlling Party to provide information and assist in respect of the Tax Matter as is reasonably requested by the Controlling Party.

16.3.7 Survival. The provisions of this Section 16.3 shall survive the termination of this Agreement (a) for the applicable statute of limitations in respect of taxes incurred in connection with this Agreement, and (b) for the duration of any Tax Matter arising under this Agreement if still ongoing at the expiration of the applicable statutory time limit, and shall apply to any successors or additional parties to this Agreement.

Section 16.4 Severability

Each provision of this Agreement and each Implementing Agreement shall be valid and enforced to the fullest extent permitted by Applicable Law. If any part of this Agreement or any Implementing Agreement is, or becomes illegal, invalid or unenforceable under Applicable Law, the Parties shall be

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remedies with respect to the dispute(s) addressed therein or a limit on the claims or positions of either Party, unless a written settlement is agreed.

16.7.3 In the absence of amicable settlement of a dispute within a period of days from receipt of a Dispute Notice, the Parties agree that all legal proceedings arising out of the construction, validity or performance of this Agreement or any Implementing Agreement shall be brought in the United States District Court for the Southern District of New York and the courts of the State of New York located in New York (Manhattan) County, and each Party agrees that the aforesaid courts shall be the exclusive original forum for any such action and hereby irrevocably consents to the jurisdiction of such courts. The Parties agree that any litigation relating directly or indirectly to this Agreement must be determined by a judge sitting alone and both Parties hereby expressly agree to waive any and all rights to a jury trial.

Section 16.8 Counterparts

This Agreement may be executed in one or more counterparts all of which taken together will constitute one and the same instrument.

Section 16.9 Entire Agreement

Delta and each LATAM Affiliate acknowledge and agree that this Agreement, the Framework Agreement, the Country JV Implementing Agreements and the Implementing Agreements are intended to be construed as a single, integrated agreement for all purposes, including without limitation under Section 365 of the U.S. Bankruptcy Code, 11 U.S.C. § 101 et seq., related to the strategic alliance as contemplated in the Framework Agreement and the Joint Venture as contemplated in this Agreement. The Parties have agreed to the Joint Venture as a single transaction, and each element thereof, including this Agreement, the Framework Agreement, each Country JV Implementing Agreement, and each Implementing Agreement, represents an essential, necessary and interrelated component that was necessary for Delta and LATAM to agree to the Joint Venture. To the extent there is any conflict between this Agreement, the Framework Agreement, any Country JV Implementing Agreement and any Implementing Agreement, the provisions of this Agreement shall govern.

Section 16.10 No Third-Party Beneficiaries

This Agreement is for the benefit of the Parties and is not intended to confer any rights or benefits on any third party.

Section 16.11 Successors and Assigns

This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns.

Section 16.12 Force Majeure

Neither Party shall be liable in respect of any failure to fulfill its obligations under this Agreement (other than any obligation to pay money hereunder) if such failure is due to Force Majeure. In any such case the obligation of the affected Party to perform such obligations will be suspended or limited (to the extent circumstances prevent performance) until such circumstances shall have ceased and, except as expressly set forth in Section 7.1 and Schedule C, neither Party shall be obligated to pay any damage or cost of whatever kind (except for any accrued rights and liabilities) in respect of such affected obligations. If either Party is affected by Force Majeure, it shall immediately (but in any event, within three (3) Business Days) notify, in writing, the other Party of the nature and extent of the circumstances in question and in such case the Parties shall discuss and agree on the action to be taken.

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Section 16.13 Specific Performance

The Parties acknowledge and agree that irreparable damage would occur in the event there is a breach or threatened breach of the provisions of this Agreement, including Section 5.4 (Joint Venture Governance Regarding Third Party Cooperation), Article 8 (Competing Operations), and Article 14 (Confidentiality), and that monetary damages, even if available, would not be an adequate remedy therefore. It is accordingly agreed that, prior to the termination of this Agreement in accordance with Article 11, the Parties shall be entitled to an injunction or injunctions or other equitable or preventative relief against the other Party and its representatives and agents to prevent a breach or threatened breach of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages (and each Party hereby waives any requirement for the securing or posting of any bond in connection with such remedy). Nothing herein shall be construed as a waiver of any other legal or equitable remedies which may be available to a Party in the event of a breach or threatened breach of the provisions of this Agreement and such Party may pursue any other such remedy including the recovery of damages. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy for any such breach.

Section 16.14 Further Assurances

Each Party will cooperate fully with the other Party and shall do and perform such further acts and execute and deliver such further instruments and documents at such Party’s expense, as may be required by Applicable Law, or may be reasonably requested by the other Party to carry out and effectuate the purposes of this Agreement.

Section 16.15 Independent Contractor

Each Party is an independent contractor. Nothing in this Agreement or any Implementing Agreement is intended or shall be construed to create or establish any agency relationship (except to the extent a Party is expressly in writing designated to serve as agent for the other Party), partnership or fiduciary relationship between the Parties.

Section 16.16 Other

16.16.1 Unless otherwise specified in this Agreement, all references in this Agreement to “herein”, “hereof”, “hereto”, “hereby” and “hereunder” shall be deemed references to this Agreement as a whole and not to any particular article, section, subsection, paragraph, sentence or clause of this Agreement. Unless otherwise specified in this Agreement, references herein to “including” or “include” shall mean “including without limitation” or “include without limitation”, respectively.

16.16.2 All Schedules and attachments to this Agreement are incorporated herein and made a part hereof for all purposes.

16.16.3 The section headings and captions appearing in this Agreement have been inserted as a matter of convenience and in no way define, limit or enlarge the scope of this Agreement or any of the provisions hereof.

16.16.4 This Agreement is the product of negotiations between the Parties and shall be construed as if jointly prepared and drafted by them, and no provision hereof shall be construed for or against any Party by reason of ambiguity in language, rules of construction against the drafting Party, or similar doctrine.

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Section 16.17 Costs and Expenses

Each Party shall bear its own costs and expenses, including the fees and expenses of its legal and other advisers and VAT or any similar tax on such fees and expenses, incurred in connection with the establishment of the Joint Venture pursuant to this Agreement including:

16.17.1 the negotiation, documentation and execution of this Agreement, any Implementing Agreement and any other documents referred to in this Agreement or ancillary or incidental thereto; and

16.17.2 the negotiation, documentation and execution of all supplements, waivers, and variations of this Agreement, any Implementing Agreement or any other documents referred to in this Agreement or ancillary or incidental thereto.

Section 16.18 Survival

Articles 1, 7 (to the extent relating to amounts owed with respect to the Term), 12, 13, 14, 15 and 16, Schedule A and Schedule C (to the extent relating to amounts owed with respect to the Term) shall survive the expiration or termination of this Agreement. The obligations of a Recipient and the rights of a Discloser under Article 14 shall survive the expiration or termination of this Agreement or, where applicable, an Implementing Agreement for a period of years and the provisions of Section 16.3 shall survive for the period specified in Section 16.3.7.

Section 16.19 Public Announcements

Media releases, public announcements or disclosures, and promotional or marketing materials relating to this Agreement, any Implementing Agreement, or the subject matter hereof or thereof, shall be coordinated with and approved by the Parties prior to their release. No Party shall unreasonably withhold approval of such releases.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in their names and on their behalf by their respective officers duly authorized, on the day and year first written above.

EXECUTED on behalf of Delta and each LATAM Affiliate:

[The remainder of this page is intentionally left blank]

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Signature Page to the Trans-American Joint Venture Agreement

DELTA AIR LINES, INC. |
By: |  |
Name: |  |
Title: |  |

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Signature Page to the Trans-American Joint Venture Agreement

LATAM AIRLINES GROUP S.A. |
By: | /s/ Roberto Alvo |
Name: | Roberto Alvo |
Title: | CEO |
LATAM AIRLINES GROUP S.A. |
By: | /s/ (A) SOLEDAD BERRIOS VALDIVIESO |
Name: | (A) SOLEDAD BERRIOS VALDIVIESO |
Title: | SVP Strategic Alliances |

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Signature Page to the Trans-American Joint Venture Agreement

TAM LINHAS AÉREAS S.A. |
By: | /s/ Jerome Cadier |
Name: | Jerome Cadier |
Title: | CEO Latam Brasil |
TAM LINHAS AÉREAS S.A. |
By: | /s/ JEFFERSON CESTARI |
Name: | JEFFERSON CESTARI |
Title: | HR Director |

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Signature Page to the Trans-American Joint Venture Agreement

LATAM AIRLINES PERÚ S.A. |
By: | /s/ Manuel Van Oordt |
Name: | Manuel Van Oordt |
Title: | Chief Executive Officer |
LATAM AIRLINES PERÚ S.A. |
By: |  |
Name: |  |
Title: |  |

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Signature Page to the Trans-American Joint Venture Agreement

TRANSPORTES AEREOS DEL MERCOSUR S.A., D/B/A TAM MERCOSUR
By: | /s/ Enrique Alcaide |
Name: | Enrique Alcaide |
Title: | Director Ejecutivo |
TRANSPORTES AEREOS DEL MERCOSUR S.A., D/B/A TAM MERCOSUR
By: | /s/ Diego Martinez |
Name: | Diego Martinez |
Title: | Gerente Administracion, Finanzas y RRHH |

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Signature Page to the Trans-American Joint Venture Agreement

AEROVIAS DE INTEGRACION REGIONAL, AIRES S.A., D/B/A LAN COLOMBIA
By: | /s/ Erika Zarante |
Name: | Erika Zarante |
Title: | Reunión e Legal |

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SCHEDULE A

Definitions

The following terms shall have the meanings given them below:

“Affiliate” means, with respect to any Person, any other Person, existing now or at any time in the future, directly or indirectly, Controlling, Controlled by, or under common Control with, such Person.

“Agreement” has the meaning given such term in the preamble of this Agreement.

“Applicable Law” means all applicable laws of any jurisdiction including securities laws, competition laws, tax laws, tariff and trade laws, antitrust laws, ordinances, judgments, decrees, injunctions, writs, and orders or like actions of any Competent Authority and the rules, regulations, orders, interpretations, licenses, exemptions, certificates and permits of any Competent Authority, including all applicable rules and regulations of any stock exchange having jurisdiction over either Party, as may be in existence at the applicable time.

“AWM” means the adjusted weighted mileage rule for the proration of ticket revenues, which utilizes the industry standard straight rate prorate method, as defined in Article C of the IATA Multilateral Prorate Agreement published in the IATA Prorate Manual – Passenger and adds an additional 671 prorate factor miles to all prorate factors, including with respect to carrier-imposed surcharges (with full AWM pro-ration of the carrier-imposed surcharges regardless of how such surcharges are filed).

“Baseline” has the meaning given such term in Section 7.2.1.

“Beyond Route” has the meaning given such term in Section 3.5.1.1.

“Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking and savings and loan institutions are authorized or required by Applicable Law to be closed in New York City, New York U.S.A or Santiago, Chile.

“Business Objectives” has the meaning given such term in Section 3.1.

“Capacity Growth Allocation Date” has the meaning given such term in Section 5.3.

“Capped Amount” means U.S. Dollars (US $ .

“Cargo Business Objectives” shall have the meaning set forth in Section 6.12.

“Cargo Contribution” has the meaning given such term in Appendix 1 to Schedule C.

“Cargo Cooperation Implementation Plan” shall have the meaning set forth in Section 6.12.

“Change of Control” means, with respect to a Party, where a third party (not being an Affiliate of such Party) acquires Control directly or indirectly of such Party (or, in the case of LATAM, any LATAM Affiliate), whether by merger, share purchase, acquisition of all or substantially all of its assets, consolidation or other transaction or series of related transactions having the same effect.

“Claim” has the meaning given such term in Section 12.3.1.

“Claim Notice” has the meaning given such term in Section 12.3.1.

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ATTACHMENT 1
TO

SCHEDULE A

Delta Grandfathered Carriers

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ATTACHMENT 2

TO

SCHEDULE A

LATAM Grandfathered Carriers

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SCHEDULE B

Cargo Cooperation Implementation Plan

The Cargo Cooperation Implementation Plan will be added to this Agreement as Schedule B prior to the Implementation Date.

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SCHEDULE C

Financial Settlement

Subject to Article 7 of the Agreement, commencing on the Implementation Date and thereafter during the Term, this Schedule C shall govern the financial settlement between the Parties with respect to the Parties’ Incremental JV Passenger Contribution and Incremental JV Cargo Contribution for each Settlement Period. Prior to the Implementation Date, the Parties shall amend this Schedule C to include further details regarding those items set forth herein where mutual agreement of the Parties is required prior to the Implementation Date.

Section 1. Reference Period Calculations – Baseline

1.1 Reference Period Passenger Contribution. As set forth in Section 7.2 of the Agreement, as soon as reasonably practicable after the Parties’ respective financial results with respect to their Joint Venture Operations for the Reference Period have been finalized and validated, the Parties shall determine each Party’s Passenger Contribution for the Reference Period in accordance with this Schedule C (such calculation being the average of the relevant figures for each of the calendar years comprising the Reference Period, the “Reference Period Passenger Contribution”). Each Party’s Reference Period Passenger Contribution shall be calculated by reference to such Party’s Segment Contribution with respect to all JV Routes operated by such Party, its Affiliates and/or Contract Carriers during the Reference Period, as adjusted pursuant to Section 4.8 of this Schedule C.

1.2 Reference Period Cargo Contribution. As set forth in Section 7.2 of the Agreement, as soon as reasonably practicable after the Parties’ respective financial results with respect to their Joint Venture Operations for the Reference Period have been finalized and validated, the Parties shall determine each Party’s Cargo Contribution for the Reference Period in accordance with this Schedule C, (such calculation being the average of the relevant figures for each of the calendar years comprising the Reference Period, the “Reference Period Cargo Contribution”). Each Party’s Reference Period Cargo Contribution shall be calculated by reference to such Party’s Cargo Contribution with respect to all JV Routes operated by such Party, its Affiliates and/or Contract Carriers during the Reference Period.

1.3 Approval of Baseline. As set forth in Section 7.2 of the Agreement, prior to any Cash Settlement with respect to any Settlement Period, the Parties shall have approved the Baseline and shall have attached the calculation of each Party’s Reference Period Passenger Contribution and Reference Period Cargo Contribution as Attachment 1 to this Schedule C by amendment of the Agreement.

1.4 Settlement Period Calculations. In calculating each Party’s Passenger Contribution and Cargo Contribution for any Settlement Period, such calculations shall be consistent with the calculation of such Party’s Reference Period Passenger Contribution and Reference Period Cargo Contribution (as applicable).

Section 2. Accounting Changes

2.1 If at any time either Party desires to make a change to the accounting policies, principles or methodologies used by such Party in connection with preparation of the Baseline, as such accounting policies, principles and methodologies may be adjusted (including with respect to new revenue or cost items added hereunder) in accordance with this Schedule C and the Financial Settlement Procedures (collectively, the “Accounting Procedures”) or the Financial Systems of such Party, it shall provide written notice to the other Party prior to any such change. If such change is reasonably expected to have a material impact to such Party’s Adjusted Passenger Contribution or Cargo Contribution for any Settlement Period (such

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APPENDIX 1

To

SCHEDULE C

DEFINED TERMS

The following terms shall have the meanings given them below:

Defined Term: | Definition:
“Accounting Procedures” | has the meaning given such term in Section 2.1 of Schedule C.
“Adjusted JV CEASK” | has the meaning given such term in Section 4.8.2 of Schedule C.
“Ancillary Revenue” | has the meaning given such term in Section 4.3.2 of Schedule C.
“AWM” | has the meaning given such term in Schedule A to the Agreement.
“Belly Cargo Gross Revenue” | has the meaning given such term in Section 5.2 of Schedule C.
“Block Space Arrangement” | means, with respect to each Party, a hard block seat arrangement under which a third party purchases seats on a flight operated by such Party, its Affiliate or Contract Carrier on a JV Route or a related Beyond Route where such third party does not have the right at its option to return the applicable seat inventory to such Party.
“Capped Costs” | has the meaning given such term in Section 4.8.2 of Schedule C.
“Cargo Contribution” | has the meaning given such term in Section 5.1 of this Schedule C.
“Cargo JV Production Costs” | has the meaning given such term in Section 5.3 of this Schedule C.
“Cash Settlement” | has the meaning given such term in Section 6.1 of this Schedule C.
“Combined Segment Contribution” | means, with respect to each JV Route operated by a Party, its Affiliate or Contract Carrier in any Settlement Period, the sum of such Party’s Segment Contribution and such Party’s Cargo Contribution for such JV Route for such period.
“CPI Value Source” | has the meaning given such term in Section 4.8.2 of this Schedule C.
“Delta Adjusted Passenger Contribution” | has the meaning given such term in Section 4.8 of Schedule C.

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Defined Term: | Definition:
“Incremental Delta Cargo Contribution” | has the meaning given such term in Section 5.4.1 of this Schedule C.
“Incremental Delta Passenger Contribution” | has the meaning given such term in Section 4.9.1 of Schedule C.
“Incremental JV Cargo Contribution” | has the meaning given such term in Section 5.4.1 of this Schedule C.
“Incremental JV Passenger Contribution” | has the meaning given such term in Section 4.9.1 of Schedule C.
“Incremental LATAM Cargo Contribution” | has the meaning given such term in Section 5.4.1 of this Schedule C.
“Incremental LATAM Passenger Contribution” | has the meaning given such term in Section 4.9.1 of this Schedule C.
“ISC” | has the meaning given such term in Section 4.3.1(a) of this Schedule C.
“JV CEASK” | has the meaning given such term in Section 4.8.2 of this Schedule C.
“JV Passenger Contribution” | means, for any Settlement Period, the sum of the Delta Passenger Contribution and the LATAM Passenger Contribution.
“JV Production Costs” | has the meaning given such term in Section 4.7 of this Schedule C.
“Labor CEASK” | has the meaning given such term in Section 4.8.1 of this Schedule C.
“Labor Cost Reduction Amount” | has the meaning given such term in Section 4.8.1 of this Schedule C.
“Labor Costs” | has the meaning given such term in Section 4.8.1 of this Schedule C.
“LATAM Adjusted Passenger Contribution” | has the meaning given such term in Section 4.8 of this Schedule C.
“LATAM Cargo Contribution” | has the meaning given such term in Section 5.4.1 of this Schedule C.
“LATAM Cargo Contribution Share” | has the meaning given such term in Section 5.4.2 of this Schedule C.
“LATAM Contribution Differential Amount” | has the meaning given such term in Section 6.3 of this Schedule C.

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Defined Term: | Definition:
“LATAM Mid-Year Cash Settlement Amount” | has the meaning given such term in Section 6.2 of this Schedule C.
“LATAM Passenger Contribution” | has the meaning given such term in Section 4.1 of this Schedule C.
“LATAM Passenger Contribution Share” | has the meaning given such term in Section 4.9.2 of this Schedule C.
“LATAM Year-End Cash Settlement Amount” | has the meaning given such term in Section 6.3 of this Schedule C.
“Mid-Year Cash Settlement” | has the meaning given such term in Section 6.1 of this Schedule C.
“Mid-Year Threshold Amount” | has the meaning given such term in Section 6.1 of this Schedule C.
“Non-Requesting Party” | has the meaning given such term in Section 3.3 of this Schedule C.
“Operated Gross Passenger Revenue” | has the meaning given such term in Section 4.3.1 of this Schedule C.
“Passenger Contribution” | has the meaning given such term in Section 4.1 of this Schedule C.
“Paying Party” | has the meaning given such term in Section 6.3.1 of this Schedule C.
“Receiving Party” | has the meaning given such term in Section 6.5.1 of this Schedule C.
“Reference Banks” | has the meaning given such term in Section 6.5.1 of this Schedule C.
“Reference Period Cargo Contribution” | has the meaning given such term in Section 1.2 of this Schedule C.
“Reference Period Passenger Contribution” | has the meaning given to such term in Section 1.1 of this Schedule C.
“Requesting Party” | has the meaning given such term in Section 3.3 of this Schedule C.
“Segment CEASK Adjustment” | has the meaning given such term in Section 4.8.2 of this Schedule C.
“Segment Contribution” | has the meaning given such term in Section 4.2 of this Schedule C.

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Defined Term: | Definition:
“Up-Front Commission” | means a per-transaction based commission paid by a Party to a third party agent or distributor, usually based on a percentage of the ticketed fare or a flat rate per transaction (after the Up-Front Discount is applied), including standard/base agency commissions and any other incentive or override commission applied at the time the ticket sale is reported by the third party agent or distributor to such Party (either through a BSP or via a direct reporting arrangement), but excluding incentive commissions, bonuses or other subsequent retroactive performance-based payments.
“USD” | means the United States Dollar.
“Year-End Cash Settlement” | has the meaning given such term in Section 6.1 of this Schedule C.

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ATTACHMENT 1
To
SCHEDULE C

Both Parties’ Reference Period results for JV Routes will be added to this Attachment 1 once the Baseline is finalized and mutually agreed.

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