Exhibit 4.11
EXECUTION COPY
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SERIES G-1 AND SERIES B-1 NOTE PURCHASE AGREEMENT
Dated as of November 14, 2006
Among
JETBLUE AIRWAYS CORPORATION,
Owner,
and
WILMINGTON TRUST COMPANY,
Not in its individual capacity
except as expressly provided herein,
but solely as Mortgagee, Subordination Agent
under the Intercreditor Agreement and Trustee
under each of the Pass Through Trust Agreements referred to herein
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Note Purchase Agreement
CONTENTS
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SECTION 1. DEFINITIONS AND CONSTRUCTION............................... 2
SECTION 2. SECURED LOANS; CLOSING..................................... 2
2.1 Making of Loans and Issuance of Series G-1 and B-1
Equipment Notes.................................... 2
2.2 Closing............................................ 3
SECTION 3. [Intentionally omitted.]................................... 3
SECTION 4. CONDITIONS PRECEDENT....................................... 3
4.1 Conditions Precedent to the Obligations of the
Class G-1 Pass Through Trustee and B-1 Pass Through
Trustee............................................ 3
4.1.1 Series G-1 and B-1 Equipment Notes......................... 3
4.1.2 Delivery of Documents...................................... 3
4.1.3 Perfected Security Interest................................ 4
4.1.4 Violation of Law........................................... 4
4.1.5 Representations, Warranties and Covenants.................. 5
4.1.6 No Event of Default........................................ 5
4.1.7 Section 1110............................................... 5
4.1.8 Filing..................................................... 5
4.1.9 No Proceedings............................................. 5
4.1.10 Governmental Action........................................ 6
4.1.11 Title...................................................... 6
4.2 Conditions Precedent to Obligations of Mortgagee... 6
4.2.1 Documents.................................................. 6
4.2.2 Other Conditions Precedent................................. 6
4.3 Conditions Precedent to Obligations of Owner....... 6
4.3.1 Documents.................................................. 6
4.3.2 Other Conditions Precedent................................. 7
4.4 Post-Recordation Opinion........................... 7
SECTION 5. REPRESENTATIONS AND WARRANTIES............................. 7
5.1 Owner's Representations and Warranties............. 7
5.1.1 Organization; Qualification................................ 7
5.1.2 Corporate Authorization.................................... 8
5.1.3 No Violation............................................... 8
5.1.4 Approvals.................................................. 8
5.1.5 Valid and Binding Agreements............................... 8
5.1.6 Registration and Recordation............................... 8
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CONTENTS
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5.1.7 Owner's Location........................................... 9
5.1.8 Compliance With Laws....................................... 9
5.1.9 Securities Laws............................................ 9
5.1.10 Broker's Fees.............................................. 9
5.1.11 Section 1110............................................... 9
5.1.12 Title...................................................... 10
5.2 WTC's Representations and Warranties............... 10
5.2.1 Organization, Etc.......................................... 10
5.2.2 Corporate Authorization.................................... 10
5.2.3 No Violation............................................... 10
5.2.4 Approvals.................................................. 11
5.2.5 Valid and Binding Agreements............................... 11
5.2.6 Citizenship................................................ 11
5.2.7 No Liens................................................... 11
5.2.8 Litigation................................................. 12
5.2.9 Securities Laws............................................ 12
5.2.10 Investment................................................. 12
5.2.11 Taxes...................................................... 12
5.2.12 Broker's Fees.............................................. 13
SECTION 6. COVENANTS, UNDERTAKINGS AND AGREEMENTS..................... 13
6.1 Covenants of Owner................................. 13
6.1.1 Corporate Existence; U.S. Air Carrier...................... 13
6.1.2 Notice of Change of Location............................... 13
6.1.3 Securities Laws............................................ 13
6.2 Covenants of WTC................................... 14
6.2.1 Liens...................................................... 14
6.2.2 Securities Act............................................. 14
6.2.3 Performance of Agreements.................................. 14
6.2.4 Withholding Taxes.......................................... 14
6.3 Covenants of Note Holders.......................... 15
6.3.1 Withholding Taxes.......................................... 15
6.3.2 Transfer; Compliance....................................... 15
6.4 Agreements......................................... 16
6.4.1 Quiet Enjoyment............................................ 16
6.4.2 Consents................................................... 16
6.4.3 Insurance.................................................. 16
6.4.4 Extent of Interest of Note Holders......................... 16
SECTION 7. CONFIDENTIALITY............................................ 16
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CONTENTS
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SECTION 8. INDEMNIFICATION AND EXPENSES............................... 17
8.1 General Indemnity.................................. 17
8.1.1 Indemnity.................................................. 17
8.1.2 Exceptions................................................. 18
8.1.3 Separate Agreement......................................... 20
8.1.4 Notice..................................................... 20
8.1.5 Notice of Proceedings; Defense of Claims; Limitations...... 20
8.1.6 Information................................................ 21
8.1.7 Effect of Other Indemnities; Subrogation; Further
Assurances................................................. 22
8.1.8 Refunds.................................................... 22
8.2 Expenses........................................... 22
8.2.1 Invoices and Payment....................................... 22
8.2.2 Payment of Other Expenses.................................. 22
8.3 General Tax Indemnity.............................. 22
8.3.1 General.................................................... 22
8.3.2 Certain Exceptions......................................... 23
8.3.3 Payment.................................................... 25
8.3.4 Contest.................................................... 26
8.3.5 Refund..................................................... 28
8.3.6 Tax Filing................................................. 29
8.3.7 Forms...................................................... 29
8.3.8 Non-Parties................................................ 29
8.3.9 Subrogation................................................ 30
8.4 Payments........................................... 30
8.5 Interest........................................... 30
8.6 Benefit of Indemnities............................. 30
SECTION 9. ASSIGNMENT OR TRANSFER OF INTEREST......................... 30
9.1 Note Holders....................................... 30
9.2 Effect of Transfer................................. 31
SECTION 10. SECTION 1110............................................... 31
SECTION 11. CHANGE OF CITIZENSHIP...................................... 31
11.1 Generally.......................................... 31
11.2 Mortgagee.......................................... 31
SECTION 12. MISCELLANEOUS.............................................. 32
12.1 Amendments......................................... 32
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CONTENTS
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12.2 Severability....................................... 32
12.3 Survival........................................... 32
12.4 Reproduction of Documents.......................... 32
12.5 Counterparts....................................... 33
12.6 No Waiver.......................................... 33
12.7 Notices............................................ 33
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE... 33
12.9 Third-Party Beneficiary............................ 34
12.10 Entire Agreement................................... 35
12.11 Further Assurances................................. 35
SCHEDULES
SCHEDULE 1 - Accounts; Addresses
SCHEDULE 2 - Certain Terms
EXHIBITS
EXHIBIT A - Opinion of Special Counsel to Owner
EXHIBIT B - Opinion of Legal Department of Owner
EXHIBIT C - Opinion of Special Counsel to Mortgagee and to the Class G-1 Pass
Through Trustee and Class B-1 Pass Through Trustee
EXHIBIT D - Opinion of Special Counsel in Oklahoma City, Oklahoma
EXHIBIT E - Opinion of Special Counsel in Puerto Rico
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SERIES G-1 AND SERIES B-1 NOTE PURCHASE AGREEMENT
SERIES G-1 AND SERIES B-1 NOTE PURCHASE AGREEMENT, dated as of November 14,
2006 (this "AGREEMENT"), among (a) JETBLUE AIRWAYS CORPORATION, a Delaware
corporation ("OWNER"), (b) WILMINGTON TRUST COMPANY, a Delaware banking
corporation, not in its individual capacity, except as expressly provided
herein, but solely as Mortgagee (in its capacity as Mortgagee, "MORTGAGEE" and
in its individual capacity, "WTC"), (c) WILMINGTON TRUST COMPANY, not in its
individual capacity, except as expressly provided herein, but solely as Pass
Through Trustee under each of the (i) JetBlue Airways (Spare Parts) G-1 Pass
Through Trust Agreement of even date herewith ("CLASS G-1 PASS THROUGH TRUST
AGREEMENT"), and (ii) JetBlue Airways (Spare Parts) B-1 Pass Through Trust
Agreement of even date herewith ("CLASS B-1 PASS THROUGH TRUST AGREEMENT")
(respectively, as "CLASS G-1 PASS THROUGH TRUSTEE" and "CLASS B-1 PASS THROUGH
TRUSTEE") and (d) WILMINGTON TRUST COMPANY, not in its individual capacity,
except as expressly provided herein, but solely as Subordination Agent under the
Intercreditor Agreement ("SUBORDINATION AGENT").
RECITALS
A. Owner is the owner of the Pledged Spare Parts, and the Owner wishes to
issue and sell the Series G-1 Equipment Note and Series B-1 Equipment Note, to
be secured by, among other things, the Pledged Spare Parts.
B. Pursuant to the Class G-1 Pass Through Trust Agreement, the Class G-1
Pass Through Trust was created, and the Class G-1 Pass Through Trust issued and
sold certificates substantially in the form of Exhibit A thereto and
authenticated by the Class G-1 Pass Through Trustee (the "Class G-1 Pass Through
Certificates").
C. Pursuant to the Class B-1 Pass Through Trust Agreement, the Class B-1
Pass Through Trust was created, and the Class B-1 Pass Through Trust issued and
sold certificates substantially in the form of Exhibit A thereto and
authenticated by the Class B-1 Pass Through Trustee (the "Class B-1 Pass Through
Certificates").
D. Each of the Class G-1 Pass Through Trustee and Class B-1 Pass Through
Trustee has agreed to use the proceeds from the issuance and sale of its
respective Class G-1 Pass Through Certificates and Class B-1 Pass Through
Certificates issued by the applicable Pass Through Trust to purchase from Owner,
on behalf of the related Pass Through Trust, the Series G-1 Equipment Note
bearing the same interest rate as the Class G-1 Pass Through Certificates, and
the Series B-1 Equipment Note bearing the same interest rate as the Class B-1
Pass Through Certificates, each as issued by the applicable Pass Through Trust.
E. Owner and Mortgagee, concurrently with the execution and delivery
hereof, have entered into the Trust Indenture for the benefit of the Note
Holders, pursuant to which, among other things, Owner agrees (1) to issue the
Initial Equipment Notes, in the amounts and otherwise as provided in the Trust
Indenture, and (2) to mortgage, pledge and assign to Mortgagee all of Owner's
right, title and interest in the Collateral to secure the Secured
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Obligations, including, without limitation, Owner's obligations under the
Initial Equipment Notes.
F The parties hereto wish to set forth in this Agreement the terms and
conditions upon and subject to which the aforesaid transactions shall be
effected.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION
Capitalized terms used but not defined herein (including in the initial
paragraph and Recitals above) shall have the respective meanings set forth or
incorporated by reference, and shall be construed and interpreted in the manner
described, in Annex A to the Trust Indenture.
SECTION 2. SECURED LOANS; CLOSING
2.1 MAKING OF LOANS AND ISSUANCE OF INITIAL EQUIPMENT NOTES
Subject to the terms and conditions of this Agreement, at the closing under
the applicable Underwriting Agreement,
(a) upon receipt by the Class G-1 Pass Through Trustee of the proceeds from
the sale of the Class G-1 Pass Through Certificate:
(i) the Class G-1 Pass Through Trustee shall make a secured loan to
the Owner in the amount of $74,128,000.00, to be evidenced by a
Series G-1 Equipment Note;
(ii) the Owner shall issue, pursuant to and in accordance with the
provisions of Article II of the Trust Indenture, to the
Subordination Agent as the registered holder on behalf of the
Class G-1 Pass Through Trustee, one Series G-1 Equipment Note,
dated the Closing Date, in an aggregate principal amount equal to
the secured loan made by the Class G-1 Pass Through Trustee; and
(b) upon receipt by the by the Class B-1 Pass Through Trustee of the
proceeds from the sale of the Class B-1 Pass Through Certificate:
(i) the Class B-1 Pass Through Trustee shall make a secured loan to
the Owner in the amount of $49,418,000.00, to be evidenced by a
Series B-1 Equipment Note; and
(ii) the Owner shall issue, pursuant to and in accordance with the
provisions of Article II of the Trust Indenture, to the
Subordination Agent as the registered holder on behalf of the
Class B-1 Pass Through Trustee, one Series B-1 Equipment Note,
dated the Closing Date, in an aggregate
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principal amount equal to the secured loan made by the Class B-1
Pass Through Trustee.
2.2 CLOSING
(a) The Closing shall take place on the Closing Date at the offices of
Holland & Knight LLP, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or on such other
date or at such other place as the parties shall agree.
(b) All payments pursuant to this Section 2 shall be made in immediately
available funds to the accounts set forth in Schedule 1 hereto opposite the name
of the recipients of such payments.
SECTION 3. [INTENTIONALLY OMITTED.]
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE CLASS G-1 PASS THROUGH
TRUSTEE AND CLASS B-1 PASS THROUGH TRUSTEE
The obligation of each Class G-1 Pass Through Trustee and Class B-1 Pass
Through Trustee to make its secured loan described in Section 2.1 and to
participate in the transactions contemplated by this Agreement on the Closing
Date is subject to the fulfillment, prior to or on the Closing Date, of the
following conditions precedent:
4.1.1 INITIAL EQUIPMENT NOTES
The Owner shall have tendered each of the Series G-1 Equipment Note to be
issued to the Class G-1 Pass Through Trustee, and the Series B-1 Equipment Note
to be issued to the Class B-1 Pass Through Trustee, to the Mortgagee for
authentication and the Mortgagee shall have authenticated such Series G-1
Equipment Note and Series B-1 Equipment Note to be issued to such Class G-1 Pass
Through Trustee and Class B-1 Pass Through Trustee, respectively, and shall have
tendered the Series G-1 Equipment Note and Series B-1 Equipment Note to the
Subordination Agent on behalf of each such Class G-1 Pass Through Trustee and
Class B-1 Pass Through Trustee, against receipt of the loan proceeds, in
accordance with Section 2.1.
4.1.2 DELIVERY OF DOCUMENTS
The Subordination Agent on behalf of each such Class G-1 Pass Through
Trustee and Class B-1 Pass Through Trustee shall have received executed
counterparts or conformed copies of the following documents:
(i) this Agreement;
(ii) the Trust Indenture;
(iii) the broker's report and insurance certificates required by
Section 4.09 of the Trust Indenture;
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(iv) (A) a copy of the Certificate of Incorporation and By-Laws of
Owner and resolutions of the board of directors of Owner and/or the executive
committee thereof, in each case certified as of the Closing Date, by the
Secretary or an Assistant Secretary of Owner, duly authorizing the execution,
delivery and performance by Owner of the Operative Agreements to which it is
party required to be executed and delivered by Owner on or prior to the Closing
Date in accordance with the provisions hereof and thereof; and (B) an incumbency
certificate of Owner as to the person or persons authorized to execute and
deliver the Operative Agreements on behalf of Owner;
(v) an Officer's Certificate of Owner, dated as of the Closing Date,
stating that its representations and warranties set forth in this Agreement are
true and correct as of the Closing Date (or, to the extent that any such
representation and warranty expressly relates to an earlier date, true and
correct as of such earlier date);
(vi) the Financing Statements;
(vii) the following opinions of counsel, in each case dated the
Closing Date:
(A) an opinion of Holland & Knight LLP, special counsel to Owner,
substantially in the form of Exhibit A;
(B) an opinion of Owner's Legal Department, substantially in the
form of Exhibit B;
(C) an opinion of Morris, James, Hitchens & Xxxxxxxx LLP, special
counsel to Mortgagee and to the Class G-1 Pass Through Trustee and Class B-1
Pass Through Trustee, substantially in the form of Exhibit C;
(D) an opinion of XxXxx Xxxxxxxxx, special counsel in Oklahoma
City, Oklahoma, substantially in the form of Exhibit D; and
(E) an opinion of Adsuar Xxxxx Goycot Xxxxxx, Special Counsel in
Puerto Rico, substantially in the form of Exhibit E.
(viii) the Collateral Maintenance Agreement.
4.1.3 PERFECTED SECURITY INTEREST
On the Closing Date, after giving effect to the filing of the FAA Filed
Documents and the Financing Statements, Mortgagee shall have received a duly
perfected first priority security interest in all of Owner's right, title and
interest in the Pledged Spare Parts, subject only to Permitted Liens.
4.1.4 VIOLATION OF LAW
No change shall have occurred after the date of this Agreement in any
applicable Law that makes it a violation of Law for (a) Owner, any Class G-1
Pass Through Trustee, any Class B-1 Pass Through Trustee, Subordination Agent or
Mortgagee to execute, deliver and perform
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the Operative Agreements to which any of them is a party, or (b) any Class G-1
Pass Through Trustee to make the loan contemplated by Section 2.1, to acquire a
Series G-1 Equipment Note, or to realize the benefits of the security afforded
by the Indenture or (c) any Class B-1 Pass Through Trustee to make the loan
contemplated by Section 2.1, to acquire a Series B-1 Equipment Note, or to
realize the benefits of the security afforded by the Trust Indenture.
4.1.5 REPRESENTATIONS, WARRANTIES AND COVENANTS
The representations and warranties of each other party to this Agreement
made, in each case, in this Agreement and in any other Operative Agreement to
which it is a party, shall be true and accurate in all material respects as of
the Closing Date (unless any such representation and warranty shall have been
made with reference to a specified date, in which case such representation and
warranty shall be true and accurate as of such specified date) and each other
party to this Agreement shall have performed and observed, in all material
respects, all of its covenants, obligations and agreements in this Agreement and
in any other Operative Agreement to which it is a party to be observed or
performed by it as of the Closing Date.
4.1.6 NO EVENT OF DEFAULT
On the Closing Date, no event shall have occurred and be continuing, or
would result from the mortgage of the Pledged Spare Parts, which constitutes a
Default or an Event of Default.
4.1.7 SECTION 1110
Mortgagee shall be entitled to the benefits of Section 1110 (as currently
in effect) with respect to the right to take possession of the Pledged Spare
Parts and to enforce any of its other rights or remedies as provided in the
Trust Indenture and the Collateral Maintenance Agreement in the event of a case
under Chapter 11 of the Bankruptcy Code in which Owner is a debtor.
4.1.8 FILING
On the Closing Date (a) the FAA Filed Documents shall have been duly filed
for recordation (or shall be in the process of being so duly filed for
recordation) with the FAA in accordance with the Act and (b) each Financing
Statement shall have been duly filed (or shall be in the process of being so
duly filed) in the appropriate jurisdiction.
4.1.9 NO PROCEEDINGS
No action or proceeding shall have been instituted, nor shall any action be
threatened in writing, before any Government Entity, nor shall any order,
judgment or decree have been issued or proposed to be issued by any Government
Entity, to set aside, restrain, enjoin or prevent the completion and
consummation of this Agreement or any other Operative Agreement or the
transactions contemplated hereby or thereby.
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4.1.10 GOVERNMENTAL ACTION
All appropriate action required to have been taken prior to the Closing
Date by the FAA, or any governmental or political agency, subdivision or
instrumentality of the United States, in connection with the transactions
contemplated by this Agreement shall have been taken, and all orders, permits,
waivers, authorizations, exemptions and approvals of such entities required to
be in effect on the Closing Date in connection with the transactions
contemplated by this Agreement shall have been issued.
4.1.11 TITLE
Owner shall have good and marketable title to the Pledged Spare Parts as of
the Closing Date, free and clear of all Liens, except Permitted Liens.
4.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF MORTGAGEE
The obligation of Mortgagee to authenticate the Initial Equipment Notes on
the Closing Date is subject to the satisfaction or waiver by Mortgagee, on or
prior to the Closing Date, of the conditions precedent set forth below in this
Section 4.2.
4.2.1 DOCUMENTS
Executed originals of the agreements, instruments, certificates or
documents described in Section 4.1.2 shall have been received by Mortgagee,
except as specifically provided therein, unless the failure to receive any such
agreement, instrument, certificate or document is the result of any action or
inaction by Mortgagee.
4.2.2 OTHER CONDITIONS PRECEDENT
Each of the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6, 4.1.7,
4.1.8, 4.1.9 and 4.1.10 shall have been satisfied unless the failure of any such
condition to be satisfied is the result of any action or inaction by Mortgagee.
4.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF OWNER
The obligation of Owner to participate in the transaction contemplated
hereby on the Closing Date is subject to the satisfaction or waiver by Owner, on
or prior to the Closing Date, of the conditions precedent set forth below in
this Section 4.3.
4.3.1 DOCUMENTS
Executed originals of the agreements, instruments, certificates or
documents described in Section 4.1.2 shall have been received by Owner, except
as specifically provided therein, and shall be satisfactory to Owner, unless the
failure to receive any such agreement, instrument, certificate or document is
the result of any action or inaction by Owner. In addition, the Owner shall have
received the following:
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(i) (A) an incumbency certificate of WTC as to the person or persons
authorized to execute and deliver the Operative Agreements on behalf of WTC and
(B) a copy of the Certificate of Incorporation and By-Laws and general
authorizing resolution of the board of directors (or executive committee) or
other satisfactory evidence of authorization of WTC, certified as of the Closing
Date by the Secretary or Assistant or Attesting Secretary of WTC, which
authorize the execution, delivery and performance by WTC of the Operative
Agreements to which it is a party; and
(ii) an Officer's Certificate of WTC, dated as of the Closing Date,
stating that its representations and warranties in its individual capacity or as
Mortgagee, Class G-1 Pass Through Trustee and Class B-1 Pass Through Trustee or
Subordination Agent, as the case may be, set forth in this Agreement are true
and correct as of the Closing Date (or, to the extent that any such
representation and warranty expressly relates to an earlier date, true and
correct as of such earlier date).
4.3.2 OTHER CONDITIONS PRECEDENT
Each of the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6, 4.1.7,
4.1.9 and 4.1.10 shall have been satisfied or waived by Owner, unless the
failure of any such condition to be satisfied is the result of any action or
inaction by Owner.
4.4 POST-RECORDATION OPINION
Promptly upon the recordation of the FAA Filed Documents pursuant to the
Act, Owner will cause XxXxx Xxxxxxxxx, special counsel in Oklahoma City,
Oklahoma, to deliver to Owner, each Class G-1 Pass Through Trustee and Class B-1
Pass Through Trustee, Mortgagee, each Liquidity Provider and the Policy Provider
a favorable opinion or opinions addressed to each of them with respect to such
registration and recordation.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 OWNER'S REPRESENTATIONS AND WARRANTIES
Owner represents and warrants to any Class G-1 Pass Through Trustee, any
Class B-1 Pass Through Trustee, Subordination Agent and Mortgagee that:
5.1.1 ORGANIZATION; QUALIFICATION
Owner is a corporation duly incorporated, validly existing and in good
standing under the Laws of the State of Delaware and has the corporate power and
authority to conduct the business in which it is currently engaged and to own or
hold under lease its properties and to enter into and perform its obligations
under the Operative Agreements to which it is party. Owner is duly qualified to
do business as a foreign corporation in good standing in each jurisdiction in
which the nature and extent of the business conducted by it, or the ownership of
its properties, requires such qualification, except where the failure to be so
qualified would not give rise to a Material Adverse Change to Owner.
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5.1.2 CORPORATE AUTHORIZATION
Owner has taken, or caused to be taken, all necessary corporate action
(including, without limitation, the obtaining of any consent or approval of
stockholders required by its Certificate of Incorporation or By-Laws) to
authorize the execution and delivery of each of the Operative Agreements to
which it is party, and the performance of its obligations thereunder.
5.1.3 NO VIOLATION
The execution and delivery by Owner of the Operative Agreements to which it
is party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby, do not and will not (a) violate any provision of the Certificate of
Incorporation or By-Laws of Owner, (b) violate any Law applicable to or binding
on Owner or (c) violate or constitute any default under (other than any
violation or default that would not result in a Material Adverse Change to
Owner), or result in the creation of any Lien (other than as permitted under the
Trust Indenture) upon any Pledged Spare Part under, any indenture, mortgage,
chattel mortgage, deed of trust, conditional sales contract, lease, loan or
other material agreement, instrument or document to which Owner is a party or by
which Owner or any of its properties is bound.
5.1.4 APPROVALS
The execution and delivery by Owner of the Operative Agreements to which
Owner is a party, the performance by Owner of its obligations thereunder and the
consummation by Owner on the Closing Date of the transactions contemplated
thereby do not and will not require the consent or approval of, or the giving of
notice to, or the registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (a) any trustee or other
holder of any debt of Owner and (b) any Government Entity, other than the filing
of (x) the FAA Filed Documents and the Financing Statements (and continuation
statements periodically) and (y) filings, recordings, notices or other
ministerial actions pursuant to any routine recording, contractual or regulatory
requirements applicable to it.
5.1.5 VALID AND BINDING AGREEMENTS
The Operative Agreements to which Owner is a party have been duly
authorized, executed and delivered by Owner and, assuming the due authorization,
execution and delivery thereof by the other party or parties thereto, constitute
the legal, valid and binding obligations of Owner and are enforceable against
Owner in accordance with the respective terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar Laws affecting the rights of
creditors generally and general principles of equity, whether considered in a
proceeding at law or in equity.
5.1.6 REGISTRATION AND RECORDATION
Except for (a) the filing for recordation (and recordation) of the FAA
Filed Documents, (b) the registration at the International Registry of the
Mortgagee's international interest in any Pledged Spare Engine, and (c) the
filing of the Financing Statements (and continuation statements relating thereto
at periodic intervals), no further action, including any filing or
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recording of any document (including any financing statement in respect thereof
under Article 9 of the UCC) is necessary in order to establish and perfect
Mortgagee's security interest in the Pledged Spare Parts as against Owner and
any other Person, in each case, in any applicable jurisdictions in the United
States.
5.1.7 OWNER'S LOCATION
The Owner's location (as such term is used in Section 9-307 of the UCC) is
Delaware. The full and correct legal name and mailing address of Owner are
correctly set forth in Schedule 1 hereto in the column "Address for Notices".
5.1.8 COMPLIANCE WITH LAWS
(a) Owner is a Citizen of the United States and a U.S. Air Carrier.
(b) Owner holds all licenses, permits and franchises from the appropriate
Government Entities necessary to authorize Owner to lawfully engage in air
transportation and to carry on scheduled commercial passenger service as
currently conducted, except where the failure to so hold any such license,
permit or franchise would not give rise to a Material Adverse Change to Owner.
(c) Owner is not an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5.1.9 SECURITIES LAWS
Neither Owner nor any person authorized to act on its behalf has directly
or indirectly offered any beneficial interest or Security relating to the
ownership of any Pledged Spare Part, or any of the Series G-1 Equipment Note or
Series B-1 Equipment Note, or any other interest in or Security under the Trust
Indenture, for sale to, or solicited any offer to acquire any such interest or
Security from, or has sold any such interest or Security to, any person in
violation of the Securities Act.
5.1.10 BROKER'S FEES
No Person acting on behalf of Owner is or will be entitled to any broker's
fee, commission or finder's fee in connection with the Transactions, other than
the fees and expenses payable by Owner in connection with the sale of the Class
G-1 Pass Through Certificates and Class B-1 Pass Through Certificates.
5.1.11 SECTION 1110
Mortgagee, on behalf of the Note Holders and the Indenture Indemnitees, is
entitled to the benefits of Section 1110 (as currently in effect) with respect
to the right to take possession of the Pledged Spare Parts and to enforce any of
its other rights or remedies as provided in the Trust Indenture and the
Collateral Maintenance Agreement in the event of a case under Chapter 11 of the
Bankruptcy Code in which Owner is a debtor.
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5.1.12 TITLE
The Owner has good and marketable title to the Pledged Spare Parts as of
the Closing Date, free and clear of all Liens, except Permitted Liens.
5.2 WTC'S REPRESENTATIONS AND WARRANTIES
WTC represents and warrants (with respect to the representations relating
to the Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee
and the Subordination Agent, in Section 5.2.5, which are given solely in such
capacities, and Section 5.2.10, solely in its capacity as Subordination Agent)
to Owner that:
5.2.1 ORGANIZATION, ETC.
WTC is a Delaware banking corporation duly organized, validly existing and
in good standing under the Laws of the State of Delaware, holding a valid
certificate to do business as a Delaware banking corporation with banking
authority to execute and deliver, and perform its obligations under, the Class
G-1 Pass Through Trustee Agreements and Class B-1 Pass Through Trustee
Agreements and the Operative Agreements to which it is a party.
5.2.2 CORPORATE AUTHORIZATION
WTC has taken, or caused to be taken, all necessary corporate action
(including, without limitation, the obtaining of any consent or approval of
stockholders required by Law or by its Certificate of Incorporation or By-Laws)
to authorize the execution and delivery by WTC, in its individual capacity or as
Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee or
Subordination Agent, as the case may be, of the Class G-1 Pass Through Trust
Agreement and Class B-1 Pass Through Agreement, the Intercreditor Agreement,
this Note Purchase Agreement and the other Operative Agreements to which it is a
party and the performance of its obligations thereunder.
5.2.3 NO VIOLATION
The execution and delivery by WTC, in its individual capacity or as
Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee or
Subordination Agent, as the case may be, of the Class G-1 Pass Through Trustee
Agreements and Class B-1 Pass Through Trustee Agreements and the other Operative
Agreements to which it is a party, the performance by WTC, in its individual
capacity or as Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through
Trustee or Subordination Agent, as the case may be, of its obligations
thereunder and the consummation on the Closing Date of the transactions
contemplated thereby, do not and will not (a) violate any provision of the
Certificate of Incorporation or By-Laws of WTC, (b) violate any Law applicable
to or binding on WTC, in its individual capacity or (except in the case of any
Law of the State of Delaware relating to any Plan) as Mortgagee, Class G-1 Pass
Through Trustee, Class B-1 Pass Through Trustee or Subordination Agent, or (c)
violate or constitute any default under (other than any violation or default
that would not result in a Material Adverse Change to WTC, in its individual
capacity or Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through
Trustee or Subordination Agent), or result in the creation of any Lien (other
than the Lien of the Trust Indenture) upon any property of WTC, in
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its individual capacity or as Mortgagee, Class G-1 Pass Through Trustee, Class
B-1 Pass Through Trustee or Subordination Agent, or any of WTC's subsidiaries
under, any indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, lease, loan or other agreement, instrument or document to which
WTC, in its individual capacity or as Mortgagee, Class G-1 Pass Through Trustee,
Class B-1 Pass Through Trustee or Subordination Agent, is a party or by which
WTC, in its individual capacity or as Mortgagee, Class G-1 Pass Through Trustee,
Class B-1 Pass Through Trustee or Subordination Agent, or any of their
respective properties is bound.
5.2.4 APPROVALS
The execution and delivery by WTC, in its individual capacity or as
Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee or
Subordination Agent, as the case may be, of the Class G-1 Pass Through Trustee
Agreements and Class B-1 Pass Through Trustee Agreements and the Operative
Agreements to which it is a party, the performance by WTC, in its individual
capacity or as Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through
Trustee or Subordination Agent, as the case may be, of its obligations
thereunder and the consummation on the Closing Date by WTC, in its individual
capacity or as Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through
Trustee or Subordination Agent, as the case may be, of the transactions
contemplated thereby do not and will not require the consent, approval or
authorization of, or the giving of notice to, or the registration with, or the
recording or filing of any documents with, or the taking of any other action in
respect of, (a) any trustee or other holder of any Debt of WTC or (b) any
Government Entity, other than the filing of the FAA Filed Documents and the
Financing Statements.
5.2.5 VALID AND BINDING AGREEMENTS
The Class G-1 Pass Through Trustee Agreements and Class B-1 Pass Through
Trustee Agreements and the Operative Agreements to which it is a party have been
duly authorized, executed and delivered by WTC and, assuming the due
authorization, execution and delivery by the other party or parties thereto,
constitute the legal, valid and binding obligations of WTC, in its individual
capacity or as Mortgagee, Class G-1 Pass Through Trustee and Class B-1 Pass
Through Trustee or Subordination Agent, as the case may be, and are enforceable
against WTC, in its individual capacity or as Mortgagee, Class G-1 Pass Through
Trustee and Class B-1 Pass Through Trustee or Subordination Agent, as the case
may be, in accordance with the respective terms thereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar Laws affecting the rights of creditors
generally and general principles of equity, whether considered in a proceeding
at law or in equity.
5.2.6 CITIZENSHIP
WTC is a Citizen of the United States.
5.2.7 NO LIENS
On the Closing Date, there are no Liens attributable to WTC in respect of
all or any part of the Collateral.
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5.2.8 LITIGATION
There are no pending or, to the Actual Knowledge of WTC, threatened actions
or proceedings against WTC, in its individual capacity or as Mortgagee, Class
G-1 Pass Through Trustee, Class B-1 Pass Through Trustee or Subordination Agent,
before any court, administrative agency or tribunal which, if determined
adversely to WTC, in its individual capacity or as Mortgagee, Class G-1 Pass
Through Trustee, Class B-1 Pass Through Trustee or Subordination Agent, as the
case may be, would materially adversely affect the ability of WTC, in its
individual capacity or as Mortgagee, Class G-1 Pass Through Trustee, Class B-1
Pass Through Trustee or Subordination Agent, as the case may be, to perform its
obligations under any of the Operative Agreements to which Mortgagee is a party,
the Class G-1 Pass Through Trustee Agreeements, Class B-1 Pass Through Trustee
Agreements or the Subordination Agent Agreements.
5.2.9 SECURITIES LAWS
Neither WTC nor any person authorized to act on its behalf has directly or
indirectly offered any beneficial interest or Security relating to the ownership
of any Pledged Spare Part or any interest in the Collateral or any of the Series
G-1 Equipment Note and Series B-1 Equipment Note or any other interest in or
Security under the Collateral for sale to, or solicited any offer to acquire any
such interest or Security from, or has sold any such interest or Security to,
any Person other than the Subordination Agent, the Class G-1 Pass Through
Trustee and Class B-1 Pass Through Trustee, except for the offering and sale of
the Class G-1 Pass Through Certificates and Class B-1 Pass Through Certificates.
5.2.10 INVESTMENT
The Series G-1 Equipment Note and Series B-1 Equipment Note to be acquired
by the Subordination Agent are being acquired by it for the account of the Class
G-1 Pass Through Trustee and Class B-1 Pass Through Trustee, respectively, for
investment and not with a view to any resale or distribution thereof, except
that, subject to the restrictions on transfer set forth in Section 9, the
disposition by it of its Series G-1 Equipment Note and Series B-1 Equipment Note
shall at all times be within its control.
5.2.11 TAXES
There are no Taxes payable by any of Class G-1 Pass Through Trustee, Class
B-1 Pass Through Trustee or WTC, as the case may be, imposed by the State of
Delaware or any political subdivision or taxing authority thereof in connection
with the execution, delivery and performance by such Class G-1 Pass Through
Trustee, Class B-1 Pass Through Trustee or WTC, as the case may be, of this
Agreement or any of the Class G-1 Pass Through Trustee Agreements and Class B-1
Pass Through Trustee Agreements (other than franchise or other taxes based on or
measured by any fees or compensation received by any of the Class G-1 Pass
Through Trustee, Class B-1 Pass Through Trustee or WTC, as the case may be, for
services rendered in connection with the transactions contemplated by any of the
Class G-1 Pass Through Trust Agreements and Class B-1 Pass Through Trust
Agreements), and there are no Taxes payable by any of the Class G-1 Pass Through
Trustee, Class B-1 Pass Through Trustee or WTC, as the case may be,
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imposed by the State of Delaware or any political subdivision thereof in
connection with the acquisition, possession or ownership by the Class G-1 Pass
Through Trustee of the Series G-1 Equipment Note and by the Class B-1 Pass
Through Trustee of the Series B-1 Equipment Note (other than franchise or other
taxes based on or measured by any fees or compensation received by the Class G-1
Pass Through Trustee, Class B-1 Pass Through Trustee or WTC, as the case may be,
for services rendered in connection with the transactions contemplated by the
Class G-1 Pass Through Trust Agreement and Class B-1 Pass Through Trust
Agreement), and, assuming that the trusts created by the Class G-1 Pass Through
Agreement and Class B-1 Pass Through Trust Agreement will not be taxable as
corporations, but, rather, each will be characterized as a grantor trust under
subpart E, Part I of Subchapter J of the Code or as a partnership under
Subchapter K of the Code, such trusts will not be subject to any Taxes imposed
by the State of Delaware or any political subdivision thereof.
5.2.12 BROKER'S FEES
No Person acting on behalf of WTC, in its individual capacity or as
Mortgagee, Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee or
Subordination Agent, as the case may be, is or will be entitled to any broker's
fee, commission or finder's fee in connection with the Transactions.
SECTION 6. COVENANTS, UNDERTAKINGS AND AGREEMENTS
6.1 COVENANTS OF OWNER
Owner covenants and agrees, at its own cost and expense, with each Note
Holder and Mortgagee as follows:
6.1.1 CORPORATE EXISTENCE; U.S. AIR CARRIER
Owner shall at all times maintain its corporate existence, except as
permitted by Section 4.07 of the Trust Indenture, and shall at all times remain
a U.S. Air Carrier.
6.1.2 NOTICE OF CHANGE OF LOCATION
Owner will give Mortgagee timely written notice (but in any event within 30
days prior to the expiration of the period of time specified under applicable
Law to prevent lapse of perfection) of any change in its location (as such term
is used in Section 9-307 of the UCC) or legal name and will promptly take any
action required by Section 4.06 of the Trust Indenture as a result of such
relocation.
6.1.3 SECURITIES LAWS
Neither Owner nor any person authorized to act on its behalf will directly
or indirectly offer any beneficial interest or Security relating to the
ownership of any Pledged Spare Part or any interest in any of the Series G-1
Equipment Note and Series B-1 Equipment Notes or any other interest in or
Security under the Trust Indenture, for sale to, or solicit any offer to acquire
any such interest or Security from, or sell any such interest or Security to,
any person in violation of the Securities Act or applicable state or foreign
securities Laws.
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6.2 COVENANTS OF WTC
WTC in its individual capacity or as Mortgagee, Class G-1 Pass Through
Trustee and Class B-1 Pass Through Trustee or Subordination Agent, as the case
may be, covenants and agrees with Owner as follows:
6.2.1 LIENS
WTC (a) will not directly or indirectly create, incur, assume or suffer to
exist any Lien attributable to it on or with respect to all or any part of the
Collateral or any Pledged Spare Part, (b) will, at its own cost and expense,
promptly take such action as may be necessary to discharge any Lien attributable
to WTC on all or any part of the Collateral or any Pledged Spare Part and (c)
will personally hold harmless and indemnify Owner, each Note Holder, each of
their respective Affiliates, successors and permitted assigns, and the
Collateral from and against (i) any and all Expenses, (ii) any reduction in the
amount payable out of the Collateral, and (iii) any interference with the
possession, operation or other use of all or any part of any Pledged Spare Part,
imposed on, incurred by or asserted against any of the foregoing as a
consequence of any such Lien.
6.2.2 SECURITIES ACT
WTC in its individual capacity or as Mortgagee, Class G-1 Pass Through
Trustee, Class B-1 Pass Through Trustee or Subordination Agent, will not offer
any beneficial interest or Security relating to the ownership of any Pledged
Spare Part or any interest in the Collateral, or the Series G-1 Equipment Note,
Series B-1 Equipment Note or any other interest in or Security under the Trust
Indenture for sale to, or solicit any offer to acquire any such interest or
Security from, or sell any such interest or Security to, any Person in violation
of the Securities Act or applicable state or foreign securities Laws, provided
that the foregoing shall not be deemed to impose on WTC any responsibility with
respect to any such offer, sale or solicitation by any other party hereto.
6.2.3 PERFORMANCE OF AGREEMENTS
WTC, in its individual capacity and as Mortgagee, Class G-1 Pass Through
Trustee, Class B-1 Pass Through Trustee or Subordination Agent, as the case may
be, shall perform its obligations under the Class G-1 Pass Through Trust
Agreement and Class B-1 Pass Through Trustee Agreement and the Operative
Agreements in accordance with the terms thereof.
6.2.4 WITHHOLDING TAXES
WTC shall indemnify (on an after-tax basis) and hold harmless Owner against
any United States withholding taxes (and related interest, penalties and
additions to tax) as a result of the failure by WTC to withhold on payments to
any Note Holder if such Note Holder failed to provide to Mortgagee necessary
certificates or forms to substantiate the right to exemption from such
withholding tax.
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6.3 COVENANTS OF NOTE HOLDERS
Each Note Holder (including Subordination Agent) as to itself only
covenants and agrees with Owner and Mortgagee as follows:
6.3.1 WITHHOLDING TAXES
Such Note Holder (if it is a Non-U.S. Person) agrees to indemnify (on an
after-tax basis) and hold harmless Owner and Mortgagee against any United States
withholding taxes (and related interest, penalties and additions to tax) as a
result of the inaccuracy or invalidity of any certificate or form provided by
such Note Holder to Mortgagee in connection with such withholding taxes. Any
amount payable hereunder shall be paid within 30 days after receipt by a Note
Holder of a written demand therefor.
6.3.2 TRANSFER; COMPLIANCE
(a) Such Note Holder will (i) not transfer any Series G-1 Equipment Note
and Series B-1 Equipment Note or interest therein in violation of the Securities
Act or applicable state or foreign securities Law; provided, that the foregoing
provisions of this section shall not be deemed to impose on such Note Holder any
responsibility with respect to any such offer, sale or solicitation by any other
party hereto, and (ii) perform and comply with the obligations specified to be
imposed on it (as a Note Holder) under each of the Trust Indenture and the form
of Series G-1 Equipment Note and Series B-1 Equipment Note set forth in the
Trust Indenture.
(b) Each Note Holder will not sell, assign, convey, exchange or otherwise
transfer any Series G-1 Equipment Note and Series B-1 Equipment Note or any
interest in, or represented by, any Series G-1 Equipment Note and Series B-1
Equipment Note (it being understood that this provision is not applicable to the
Class G-1 Pass Through Certificates and Class B-1 Pass Through Certificates)
unless the proposed transferee thereof first provides Owner with both of the
following:
(i) a written representation and covenant that either (a) no portion
of the funds it uses to purchase, acquire and hold such Equipment Note or
interest directly or indirectly constitutes, or may be deemed under the Code or
ERISA or any rulings, regulations or court decisions thereunder to constitute,
the assets of any Plan or (b) the transfer, and subsequent holding, of such
Equipment Note or interest shall not involve or give rise to a transaction that
constitutes a prohibited transaction within the meaning of Section 406 of ERISA
or Section 4975(c)(1) of the Code involving Owner, Class G-1 Pass Through
Trustee, Class B-1 Pass Through Trustee, the Subordination Agent or the proposed
transferee (other than a transaction that is exempted from the prohibitions of
such sections by applicable provisions of ERISA or the Code or administrative
exemptions or regulations issued thereunder); and
(ii) a written covenant that it will not transfer any Series G-1
Equipment Note and Series B-1 Equipment Note or any interest in, or represented
by, any Series G-1 Equipment Note and Series B-1 Equipment Note unless the
subsequent transferee also makes the representation described in clause (i)
above and agrees to comply with this clause (ii).
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6.4 AGREEMENTS
6.4.1 QUIET ENJOYMENT
Each of the Class G-1 Pass Through Truste, Class B-1 Pass Through Trustee,
Subordination Agent, each Note Holder and Mortgagee agrees as to itself with
Owner that, so long as no Event of Default shall have occurred and be
continuing, such Person shall not (and shall not permit any Affiliate or other
Person claiming by, through or under it to) interfere with Owner's rights in
accordance with the Trust Indenture to the quiet enjoyment, possession and use
of the Collateral.
6.4.2 CONSENTS
Each of the Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee,
Subordination Agent and Mortgagee covenants and agrees, for the benefit of
Owner, that it shall not unreasonably withhold its consent to any consent or
approval requested of it under the terms of any of the Operative Agreements
which by its terms is not to be unreasonably withheld.
6.4.3 INSURANCE
Each of the Class G-1 Pass Through Trustee, Class B-1 Pass Through Trustee,
Subordination Agent, Mortgagee and each Note Holder agrees not to obtain or
maintain insurance for its own account as permitted by Section 4.09 of the Trust
Indenture if such insurance would limit or otherwise adversely affect the
coverage of any insurance required to be obtained or maintained by Owner
pursuant to Section 4.09 of the Trust Indenture.
6.4.4 EXTENT OF INTEREST OF NOTE HOLDERS
A Note Holder shall not, as such, have any further interest in, or other
right with respect to, the Collateral when and if the principal and Premium, if
any, of and interest on the Equipment Note held by such Holder, and all other
sums, then due and payable to such Holder hereunder and under any other
Operative Agreement, shall have been paid in full.
SECTION 7. CONFIDENTIALITY
Owner, Note Holders and Mortgagee (and each Indemnitee) shall keep the Note
Purchase Agreement and Annex B to the Trust Indenture confidential and shall not
disclose, or cause to be disclosed, the same to any Person, except (A) to
prospective and permitted transferees of Owner's, a Note Holder's, a Liquidity
Provider's, Policy Provider's, Mortgagee's or other Indenture Indemnitee's
interest or their respective counsel or special counsel, independent insurance
brokers, auditors, or other agents who agree to hold such information
confidential, (B) to Owner's, a Note Holder's, a Liquidity Provider's, the
Liquidity Guarantor's, Policy Provider's, a Pass Through Trustee's, Mortgagee's
or other Indenture Indemnitee's counsel or special counsel, independent
insurance brokers, auditors, or other agents, Affiliates or investors who agree
to hold such information confidential, (C) as may be required by any statute,
court or administrative order or decree, legal process or governmental ruling or
regulation, including those of any applicable insurance regulatory bodies
(including, without limitation, the National Association of Insurance
Commissioners), federal or state banking examiners, Internal Revenue
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Service auditors or any stock exchange, (D) with respect to a Note Holder or any
Pass Through Trustee, to a nationally recognized rating agency for the purpose
of obtaining or confirming a rating on the Series G-1 Equipment Note and Series
B-1 Equipment Note or the Class G-1 Pass Through Certificates or Class B-1 Pass
Through Certificates or to support an NAIC rating for the Equipment Notes or (E)
such other Persons as are reasonably deemed necessary by the disclosing party in
order to protect the interests of such party or for the purposes of enforcing
such documents by such party; provided, that any and all disclosures permitted
by clauses (C), (D), or (E) above shall be made only to the extent necessary to
meet the specific requirements or needs of the Persons making such disclosures
SECTION 8. INDEMNIFICATION AND EXPENSES
8.1 GENERAL INDEMNITY
8.1.1 INDEMNITY
Whether or not any of the transactions contemplated hereby are consummated,
Owner shall indemnify, protect, defend and hold harmless each Indemnitee from,
against and in respect of, and shall pay on a net after-tax basis, any and all
Expenses of any kind or nature whatsoever that may be imposed on, incurred by or
asserted against any Indemnitee, relating to, resulting from, or arising out of
or in connection with, any one or more of the following:
(a) The Operative Agreements, the Pass Through Agreements, or the
enforcement of any of the terms of any of the Operative Agreements or the Pass
Through Agreements;
(b) Any Collateral, including, without limitation, with respect thereto,
(i) the manufacture, design, purchase, acceptance, nonacceptance or rejection,
ownership, delivery, nondelivery, lease, sublease, assignment, possession, use
or non-use, operation, maintenance, testing, repair, overhaul, condition,
alteration, modification, addition, improvement, storage, airworthiness,
replacement, repair, sale, substitution, return, abandonment, redelivery or
other disposition of any Collateral by the Owner, any Permitted Lessee or any
other Person whatsoever, (ii) any claim or penalty arising out of or relating to
violations of applicable Laws by Owner (or any Permitted Lessee), (iii) tort
liability, whether or not arising out of the negligence of any Indemnitee
(whether active, passive or imputed), (iv) death, personal injury, property
damage or any other loss or harm to passengers, shippers or others, (v)
environmental control, noise or pollution and (vi) any Liens in respect of any
Collateral;
(c) The offer, sale, or delivery of any Series G-1 Equipment Note and
Series B-1 Equipment Note, Class G-1 Pass Through Certificates and Class B-1
Pass Through Certificates or any interest therein or represented thereby; and
(d) Any breach of or failure to perform or observe, or any other
noncompliance with, any covenant or agreement or other obligation to be
performed by Owner under any Operative Agreement to which it is party or any
Pass Through Agreement or the falsity of any representation or warranty of Owner
in any Operative Agreement to which it is party or any Pass Through Agreement.
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8.1.2 EXCEPTIONS
Notwithstanding anything contained in Section 8.1.1, Owner shall not be
required to indemnify, protect, defend and hold harmless any Indemnitee pursuant
to Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax benefit;
(b) Except to the extent attributable to acts or events occurring prior
thereto, that directly or indirectly relates to, or arises from, any act, event
or circumstance (other than acts or events related to the performance by Owner
of its obligations in respect of the Series G-1 Equipment Note or Series B-1
Equipment Note pursuant to the terms of the Operative Agreements) that occur
after such Series G-1 Equipment Note or B-1 Equipment Note has been paid and
discharged in accordance with Section 12.01 of the Trust Indenture; provided,
that nothing in this clause (b) shall be deemed to exclude or limit any claim
that any Indemnitee may have under applicable Law by reason of an Event of
Default or for damages from Owner for breach of Owner's covenants contained in
the Operative Agreements or to release Owner from any of its obligations under
the Operative Agreements that expressly provide for performance after payment
and discharge of the Series G-1 Equipment Note or Series B-1 Equipment Note;
(c) To the extent attributable to any Transfer (voluntary or involuntary)
by or on behalf of such Indemnitee of any Series G-1 Equipment Note or Series
B-1 Equipment Note, as the case may be, or interest therein or any assignment or
Transfer of any of such Indemnitee's rights or obligations under any of the
Operative Agreements, except for out-of-pocket costs and expenses incurred as a
result of any such Transfer pursuant to the exercise of remedies under any
Operative Agreement;
(d) [Intentionally Omitted.]
(e) To the extent attributable to the gross negligence or willful
misconduct of such Indemnitee or any related Indemnitee (as defined below)
(other than gross negligence or willful misconduct imputed to such person solely
by reason of its interest in the Collateral or any Operative Agreement);
(f) [Intentionally Omitted.]
(g) To the extent attributable to the incorrectness or breach of any
representation or warranty of such Indemnitee or any related Indemnitee
contained in or made pursuant to any Operative Agreement or any Pass Through
Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any
related Indemnitee to perform or observe any agreement, covenant or condition on
its part to be performed or observed in any Operative Agreement or any Pass
Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or
any related Indemnitee of any interest in the Collateral, the Series G-1
Equipment Note and Series B-1 Equipment Note, the Class G-1 Pass Through
Certificates and Class B-1 Pass Through Certificates, or any similar interest,
in violation of the Securities Act or other applicable federal,
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state or foreign securities Laws (other than any violation thereof caused by
acts or omissions of Owner);
(j) (i) With respect to any Indemnitee (other than Mortgagee), to the
extent attributable to the failure of the Mortgagee to distribute funds received
and distributable by it in accordance with the Trust Indenture, (ii) with
respect to any Indemnitee (other than the Subordination Agent), to the extent
attributable to the failure of the Subordination Agent to distribute funds
received and distributable by it in accordance with the Intercreditor Agreement,
(iii) with respect to any Indemnitee (other than the Class G-1 Pass Through
Trustee and Class B-1 Pass Through Trustee), to the extent attributable to the
failure of Class G-1 Pass Through Trustee or Class B-1 Pass Through Trustee to
distribute funds received and distributable by it in accordance with the
applicable Class G-1 Pass Through Trust Agreement or Class B-1 Pass Through
Trust Agreement, as the case may be, (iv) with respect to Mortgagee, to the
extent attributable to the negligence or willful misconduct of Mortgagee in the
distribution of funds received and distributable by it in accordance with the
Trust Indenture, (v) with respect to the Subordination Agent, to the extent
attributable to the negligence or willful misconduct of the Subordination Agent
in the distribution of funds received and distributable by it in accordance with
the Intercreditor Agreement, and (vi) with respect to the Class G-1 Pass Through
Trustee or Class B-1 Pass Through Trustee, to the extent attributable to the
negligence or willful misconduct of such Class G-1 Pass Through Trustee or Class
B-1 Pass Through Trustee in the distribution of funds received and distributable
by it in accordance with the applicable Class G-1 Pass Through Trust Agreement
or Class B-1 Pass Through Trust Agreement, as the case may be;
(k) Other than during the continuation of an Event of Default, to the
extent attributable to the authorization or giving or withholding of any future
amendments, supplements, waivers or consents with respect to any Operative
Agreement or Pass Through Agreement other than such as have been requested by
Owner or as are required by or made pursuant to the terms of the Operative
Agreements or Pass Through Agreements (unless such requirement results from the
actions of an Indemnitee not required by or made pursuant to the Operative
Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly
agrees to pay or such Indemnitee expressly agrees shall not be paid by or be
reimbursed by Owner;
(m) To the extent that it is an ordinary and usual general, operating,
administrative or overhead (or analogous) expense;
(n) [Intentionally Omitted.]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Pass Through
Agreement specifies the extent of Owner's responsibility or obligation with
respect to such Expense, to the extent arising from other than failure of Owner
to comply with such specified responsibility or obligation;
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(q) To the extent incurred by or asserted against an Indemnitee as a result
of any "prohibited transaction," within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code;
(r) To the extent attributable to Expenses incurred in connection with the
exercise of of inspection rights under the Indenture; or
(s) To the extent any such Expense constitutes a loss of future profits.
For purposes of this Section 8.1, a Person shall be considered a "related"
Indemnitee with respect to an Indemnitee if such Person is an Affiliate or
employer of such Indemnitee, a director, officer, employee, agent, or servant of
such Indemnitee or any such Affiliate or employer or a successor or permitted
assignee of any of the foregoing.
8.1.3 SEPARATE AGREEMENT
This Agreement constitutes a separate agreement with respect to each
Indemnitee and is enforceable directly by each such Indemnitee.
8.1.4 NOTICE
If a claim for any Expense that an Indemnitee shall be indemnified against
under this Section 8.1 is made, such Indemnitee shall give prompt written notice
thereof to Owner. Notwithstanding the foregoing, the failure of any Indemnitee
to notify Owner as provided in this Section 8.1.4, or in Section 8.1.5, shall
not release Owner from any of its obligations to indemnify such Indemnitee
hereunder, except to the extent that such failure results in an additional
Expense to Owner (in which event Owner shall not be responsible for such
additional expense) or materially impairs Owner's ability to contest such claim.
8.1.5 NOTICE OF PROCEEDINGS; DEFENSE OF CLAIMS; LIMITATIONS
(a) In case any action, suit or proceeding shall be brought against any
Indemnitee for which Owner is responsible under this Section 8.1, such
Indemnitee shall notify Owner of the commencement thereof. Owner shall be
entitled, at its sole cost and expense, acting through counsel reasonably
acceptable to the respective Indemnitee, so long as Owner has acknowledged in
writing its responsibility for such Expense hereunder (provided that such
acknowledgment does not apply if such Expense is covered by Section 8.1.2 or if
the decision of a court or arbitrator provides that Owner is not liable
hereunder), (A) in any judicial or administrative proceeding that involves
solely a claim for one or more Expenses, to assume responsibility for and
control thereof, and subject to Section 8.1.5(c), settle or compromise the same,
(B) in any judicial or administrative proceeding involving a claim for one or
more Expenses and other claims related or unrelated to the transactions
contemplated by the Operative Agreements, to assume responsibility for and
control of such claim for Expenses, and subject to the provisions of Section
8.1.5(c), settle or compromise the same, to the extent that the same may be and
is severed from such other claims (and such Indemnitee shall use its reasonable
efforts to obtain such severance), and (C) in any other case, to be consulted by
such Indemnitee with respect to judicial proceedings subject to the control of
such Indemnitee and to be allowed, at Owner's sole expense, to participate
therein.
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(b) Owner or its insurer(s) shall have the right, at its or their expense,
to investigate or, if Owner or its insurer(s) shall agree not to dispute
liability to the Indemnitee giving notice of such action, suit or proceeding
under this Section 8.1.5 for indemnification hereunder or under any insurance
policies pursuant to which coverage is sought, control (using counsel reasonably
satisfactory to the respective Indemnitee) the defense of, any action, suit or
proceeding, relating to any Expense for which indemnification is sought pursuant
to this Section 8.1, and each Indemnitee shall cooperate with Owner or its
insurer(s) with respect thereto; provided, that Owner shall not be entitled to
control the defense of any such action, suit, proceeding or compromise any such
Expense (x) during the continuance of any Event of Default, (y) if such
proceedings will involve a material risk of the sale, forfeiture or loss of, or
the creation of any Lien (other than a Permitted Lien) on any of the Collateral,
unless Owner shall have posted a bond or other security reasonably satisfactory
to the relevant Indemnitee with respect to such risk or (z) if such proceedings
could entail any risk of criminal liability being imposed on such Indemnitee. In
connection with any such action, suit or proceeding being controlled by Owner,
such Indemnitee shall have the right to participate therein, at its sole cost
and expense, with its own counsel reasonably satisfactory to Owner.
(c) In no event shall any Indemnitee enter into a settlement or other
compromise with respect to any Expense without the prior written consent of
Owner, which consent shall not be unreasonably withheld or delayed, unless such
Indemnitee waives its right to be indemnified with respect to such Expense under
this Section 8.1.
(d) In the case of any Expense indemnified by the Owner hereunder which is
covered by a policy of insurance maintained by Owner pursuant to Section 4.09 of
the Indenture, at Owner's expense, each Indemnitee agrees to cooperate with the
insurers in the exercise of their rights to investigate, defend or compromise
such Expense as may be required to retain the benefits of such insurance with
respect to such Expense.
(e) If an Indemnitee is not a party to this Agreement, Owner may require
such Indemnitee to agree in writing to the terms of this Section 8 and Section
12.8 prior to making any payment to such Indemnitee under this Section 8.
(f) Nothing contained in this Section 8.1.5 shall be deemed to require an
Indemnitee to contest any Expense or to assume responsibility for or control of
any judicial proceeding with respect thereto.
8.1.6 INFORMATION
Owner will provide the relevant Indemnitee with such information not within
the control of such Indemnitee, as is in Owner's control or is reasonably
available to Owner, which such Indemnitee may reasonably request and will
otherwise cooperate with such Indemnitee so as to enable such Indemnitee to
fulfill its obligations under Section 8.1.5. The Indemnitee shall supply Owner
with such information not within the control of Owner, as is in such
Indemnitee's control or is reasonably available to such Indemnitee, which Owner
may reasonably request to control or participate in any proceeding to the extent
permitted by Section 8.1.5.
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8.1.7 EFFECT OF OTHER INDEMNITIES; SUBROGATION; FURTHER ASSURANCES
Upon the payment in full by Owner of any indemnity provided for under this
Agreement, Owner, without any further action and to the full extent permitted by
Law, will be subrogated to all rights and remedies of the person indemnified
(other than with respect to any of such Indemnitee's insurance policies or in
connection with any indemnity claim such Indemnitee may have under Section 6.03
or 8.01 of the Trust Indenture) in respect of the matter as to which such
indemnity was paid. Each Indemnitee will give such further assurances or
agreements and cooperate with Owner to permit Owner to pursue such claims, if
any, to the extent reasonably requested by Owner and at Owner's expense.
8.1.8 REFUNDS
If an Indemnitee receives any refund, in whole or in part, with respect to
any Expense paid by Owner hereunder, it will promptly pay the amount refunded
(but not an amount in excess of the amount Owner or any of its insurers has paid
in respect of such Expense) over to Owner unless an Event of Default shall have
occurred and be continuing, in which case such amounts shall be paid over to
Mortgagee to hold as security for Owner's obligations under the Operative
Agreements or, if requested by Owner, applied to satisfy such obligations.
8.2 EXPENSES
8.2.1 INVOICES AND PAYMENT
The Mortgagee shall promptly submit to Owner for its prompt approval (which
shall not be unreasonably withheld) copies of invoices in reasonable detail of
the Transaction Expenses for which it is responsible for providing information
as they are received (but in no event later than the 90th day after the Closing
Date). If so submitted and approved, the Owner agrees promptly, but in any event
no later than the 105th day after the Closing Date, to pay Transaction Expenses.
8.2.2 PAYMENT OF OTHER EXPENSES
Owner shall pay (i) the ongoing fees and expenses of Mortgagee, and (ii)
all reasonable out-of-pocket costs and expenses (including the reasonable fees
and disbursements of counsel) incurred by Mortgagee or any Series G-1 and Series
B-1 Note Holder attributable to any waiver, amendment or modification of any
Operative Agreement to the extent requested by Owner.
8.3 GENERAL TAX INDEMNITY
8.3.1 GENERAL
Except as provided in Section 8.3.2, Owner agrees that each payment paid by
Owner under the Equipment Notes, and any other payment or indemnity paid by
Owner to a Tax Indemnitee under any Operative Agreement, shall be free of all
withholdings or deductions with respect to Taxes of any nature (other than U.S.
federal, state or local withholding taxes on, based on or measured by gross or
net income), and in the event that Owner shall be required by
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applicable law to make any such withholding or deduction for any such payment
(x) Owner shall make all such withholdings or deductions, (y) the amount payable
by Owner shall be increased so that after making all required withholdings or
deductions such Tax Indemnitee receives the same amount that it would have
received had no such withholdings or deductions been made, and (z) Owner shall
pay the full amount withheld or deducted to the relevant Taxing Authority in
accordance with applicable law. Except as provided in Section 8.3.2 and whether
or not any of the transactions contemplated hereby are consummated, Owner shall
pay, indemnify, protect, defend and hold each Tax Indemnitee harmless from all
Taxes imposed by any Taxing Authority that may from time to time be imposed on
or asserted against any Tax Indemnitee or any Pledged Spare Part, or any
interest therein (whether or not indemnified against by any other Person), upon
or with respect to the Operative Agreements or the transactions or payments
contemplated thereby, including but not limited to any Tax imposed upon or with
respect to (x) any Pledged Spare Part, any Operative Agreement (including
without limitation any Equipment Notes) or any data or any other thing delivered
or to be delivered under an Operative Agreement, (y) the purchase, manufacture,
acceptance, rejection, sale, transfer of title, return, ownership, mortgaging,
delivery, transport, charter, rental, lease, re-lease, sublease, assignment,
possession, repossession, presence, use, condition, storage, preparation,
maintenance, modification, alteration, improvement, operation, registration,
transfer or change of registration, reregistration, repair, replacement,
overhaul, location, control, the imposition of any Lien, financing, refinancing
requested by the Owner, abandonment or other disposition of any Pledged Spare
Part, any data or any other thing delivered or to be delivered under an
Operative Agreement or (z) interest, fees or any other income, proceeds,
receipts or earnings, whether actual or deemed, arising upon, in connection
with, or in respect of, any of the Operative Agreements (including the property
or income or other proceeds with respect to property held as part of the
Collateral) or the transactions contemplated thereby.
8.3.2 CERTAIN EXCEPTIONS
The provisions of Section 8.3.1 shall not apply to, and Owner shall have no
liability hereunder for, Taxes:
(a) imposed on a Tax Indemnitee by the federal government of the United
States or any Taxing Authority or governmental subdivision of the United States
or therein (including any state or local Taxing Authority) (i) on, based on, or
measured by, gross or net income or gross or net receipts, including capital
gains taxes, excess profits taxes, minimum taxes from tax preferences,
alternative minimum taxes, branch profits taxes, accumulated earnings taxes,
personal holding company taxes, succession taxes and estate taxes, and any
withholding taxes on, based on or measured by gross or net income or receipts or
(ii) on, or with respect to, or measured by, capital or net worth or in the
nature of a franchise tax or a tax for the privilege of doing business (other
than, in the case of clause (i) or (ii), sales, use, license or property Taxes);
(b) imposed on a Tax Indemnitee by any Taxing Authority or governmental
subdivision thereof or therein outside of the United States (including any
Taxing Authority in or of a territory, possession or commonwealth of the United
States) (i) on, based on, or measured by, gross or net income or gross or net
receipts, including capital gains taxes, excess profits taxes, minimum taxes
from tax preferences, alternative minimum taxes, branch profits taxes,
accumulated earnings taxes, personal holding company taxes, succession taxes and
estate taxes,
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and any withholding taxes on, based on or measured by gross or net income or
receipts or (ii) on, or with respect to, or measured by, capital or net worth or
in the nature of a franchise tax or a tax for the privilege of doing business
(other than, in the case of clause (i) or (ii), (A) sales, use, license or
property Taxes, or (B) any Taxes imposed by any Taxing Authority (other than a
Taxing Authority within whose jurisdiction such Tax Indemnitee is incorporated
or organized or maintains its principal place of business) if such Tax
Indemnitee would not have been subject to Taxes of such type by such
jurisdiction but for (I) the location, use or operation of any Pledged Spare
Part thereof by an Owner Person within the jurisdiction of the Taxing Authority
imposing such Tax, or (II) the activities of any Owner Person in such
jurisdiction, including, but not limited to, use of any aircraft by Owner in
such jurisdiction, (III) the status of any Owner Person as a foreign entity or
as an entity owned in whole or in part by foreign persons, (IV) Owner having
made (or having been deemed to have made) payments to such Tax Indemnitee from
the relevant jurisdiction or (V) in the case of the Pass Through Trustees, the
Note Holders or any related Tax Indemnitee, the Owner being incorporated or
organized or maintaining a place of business or conducting activities in such
jurisdiction);
(c) on, or with respect to, or measured by, any trustee fees, commissions
or compensation received by the Pass Through Trustee, Subordination Agent or
Mortgagee;
(d) that are being contested as provided in Section 8.3.4 hereof;
(e) imposed on any Tax Indemnitee to the extent that such Taxes result from
the gross negligence or willful misconduct of such Tax Indemnitee or any
Affiliate thereof;
(f) imposed on or with respect to a Tax Indemnitee (including the
transferee in those cases in which the Tax on transfer is imposed on, or is
collected from, the transferee) as a result of a transfer or other disposition
(including a deemed transfer or disposition) by such Tax Indemnitee or a related
Tax Indemnitee of any interest in any Pledged Spare Part, any interest arising
under the Operative Agreements or any Equipment Note or as a result of a
transfer or disposition (including a deemed transfer or disposition) of any
interest in a Tax Indemnitee (other than (A) a substitution or replacement of
any Pledged Spare Part by an Owner Person that is treated for Tax purposes as a
transfer or disposition, or (B) a transfer pursuant to an exercise of remedies
upon an Event of Default that shall have occurred and have been continuing);
(g) Taxes in excess of those that would have been imposed had there not
been a transfer or other disposition by or to such Tax Indemnitee or a related
Tax Indemnitee described in paragraph (f) above;
(h) consisting of any interest, penalties or additions to tax imposed on a
Tax Indemnitee as a result of (in whole or in part) failure of such Tax
Indemnitee or a related Tax Indemnitee to file any return properly and timely,
unless such failure shall be caused by the failure of Owner to fulfill its
obligations, if any, under Section 8.3.6 with respect to such return;
(i) resulting from, or that would not have been imposed but for, any Liens
arising as a result of claims against, or acts or omissions of, or otherwise
attributable to such Tax Indemnitee or a related Tax Indemnitee that the Owner
is not obligated to discharge under the Operative Agreements;
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(j) imposed on any Tax Indemnitee as a result of the breach by such Tax
Indemnitee or a related Tax Indemnitee of any covenant of such Tax Indemnitee or
any Affiliate thereof contained in any Operative Agreement or the inaccuracy of
any representation or warranty by such Tax Indemnitee or any Affiliate thereof
in any Operative Agreement;
(k) in the nature of an intangible or similar Tax (i) upon or with respect
to the value or principal amount of the interest of any Note Holder in any
Equipment Note or the loan evidenced thereby but only if such Taxes are in the
nature of franchise Taxes or result from the Tax Indemnitee doing business in
the taxing jurisdiction and are imposed because of the place of incorporation or
the activities unrelated to the transactions contemplated by the Operative
Agreements in the taxing jurisdiction of such Tax Indemnitee;
(l) imposed on a Tax Indemnitee by a Taxing Authority of a jurisdiction
outside the United States to the extent that such Taxes would not have been
imposed but for a connection between the Tax Indemnitee or a related Tax
Indemnitee and such jurisdiction imposing such Tax unrelated to the transactions
contemplated by the Operative Agreements; or
(m) Taxes relating to ERISA or Section 4975 of the Code.
For purposes hereof, a Tax Indemnitee and any other Tax Indemnitees that
are successors, assigns, agents, servants or Affiliates of such Tax Indemnitee
shall be related Tax Indemnitees.
8.3.3 PAYMENT
(a) Owner's indemnity obligation to a Tax Indemnitee under this Section 8.3
shall equal the amount which, after taking into account any Tax imposed upon the
receipt or accrual of the amounts payable under this Section 8.3 and any tax
benefits actually recognized by such Tax Indemnitee as a result of the
indemnifiable Tax (including, without limitation, any benefits recognized as a
result of an indemnifiable Tax being utilized by such Tax Indemnitee as a credit
against Taxes not indemnifiable under this Section 8.3), shall equal the amount
of the Tax indemnifiable under this Section 8.3.
(b) At Owner's request, the computation of the amount of any indemnity
payment owed by Owner or any amount owed by a Tax Indemnitee to Owner pursuant
to this Section 8.3 shall be verified and certified by an independent public
accounting firm selected by such Tax Indemnitee and reasonably satisfactory to
Owner. Such verification shall be binding. The costs of such verification
(including the fee of such public accounting firm) shall be borne by Owner
unless such verification shall result in an adjustment in Owner's favor of 5% or
more of the net present value of the payment as computed by such Tax Indemnitee,
in which case the costs shall be paid by such Tax Indemnitee.
(c) Each Tax Indemnitee shall provide Owner with such certifications,
information and documentation as shall be in such Tax Indemnitee's possession
and as shall be reasonably requested by Owner to minimize any indemnity payment
pursuant to this Section 8.3; provided, that notwithstanding anything to the
contrary contained herein, no Tax Indemnitee shall be required to provide Owner
with any Tax returns.
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(d) Each Tax Indemnitee shall promptly forward to Owner any written notice,
xxxx or advice received by it from any Taxing Authority concerning any Tax for
which it seeks indemnification under this Section 8.3. Owner shall pay any
amount for which it is liable pursuant to this Section 8.3 directly to the
appropriate Taxing Authority if legally permissible or upon demand of a Tax
Indemnitee, to such Tax Indemnitee within 30 days of such demand (or, if a
contest occurs in accordance with Section 8.3.4, within 30 days after a Final
Determination (as defined below)), but in no event more than one Business Day
prior to the date the Tax to which such amount payable hereunder relates is due.
If requested by a Tax Indemnitee in writing, Owner shall furnish to the
appropriate Tax Indemnitee the original or a certified copy of a receipt for
Owner's payment of any Tax paid by Owner or such other evidence of payment of
such Tax as is acceptable to such Tax Indemnitee. Owner shall also furnish
promptly upon written request such data as any Tax Indemnitee may reasonably
require to enable such Tax Indemnitee to comply with the requirements of any
taxing jurisdiction unless such data is not reasonably available to Owner or,
unless such data is specifically requested by a Taxing Authority, is not
customarily furnished by domestic air carriers under similar circumstances. For
purposes of this Section 8.3, a "Final Determination" shall mean (i) a decision,
judgment, decree or other order by any court of competent jurisdiction that
occurs pursuant to the provisions of Section 8.3.4, which decision, judgment,
decree or other order has become final and unappealable, (ii) a closing
agreement or settlement agreement entered into in accordance with Section 8.3.4
that has become binding and is not subject to further review or appeal (absent
fraud, misrepresentation, etc.), or (iii) the termination of administrative
proceedings and the expiration of the time for instituting a claim in a court
proceeding.
(e) If any Tax Indemnitee shall actually realize a tax savings by reason of
any Tax paid or indemnified by Owner pursuant to this Section 8.3 (whether such
tax savings shall be by means of a foreign tax credit, depreciation or cost
recovery deduction or otherwise) and such savings is not otherwise taken into
account in computing such payment or indemnity such Tax Indemnitee shall pay to
Owner an amount equal to the lesser of (i) the amount of such tax savings, plus
any additional tax savings recognized as the result of any payment made pursuant
to this sentence, when, as, if, and to the extent, realized or (ii) the amount
of all payments pursuant to this Section 8.3 by Owner to such Tax Indemnitee
(less any payments previously made by such Tax Indemnitee to Owner pursuant to
this Section 8.3.3 (e)) (and the excess, if any, of the amount described in
clause (i) over the amount described in clause (ii) shall be carried forward and
applied to reduce pro tanto any subsequent obligations of Owner to make payments
to such Tax Indemnitee pursuant to this Section 8.3); provided, that such Tax
Indemnitee shall not be required to make any payment pursuant to this sentence
so long as an Event of Default of a monetary nature has occurred and is
continuing. If a tax benefit is later disallowed or denied, the disallowance or
denial shall be treated as a Tax indemnifiable under Section 8.3.1 without
regard to the provisions of Section 8.3.2 (other than Section 8.3.2 (f)). Each
such Tax Indemnitee shall in good faith use reasonable efforts in filing its tax
returns and in dealing with Taxing Authorities to seek and claim any such tax
benefit.
8.3.4 CONTEST
(a) If a written claim is made against a Tax Indemnitee for Taxes with
respect to which Owner could be liable for payment or indemnity hereunder, or if
a Tax Indemnitee makes a determination that a Tax is due for which Owner could
have an indemnity obligation
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hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of
such claim (provided, that failure to so notify Owner shall not relieve Owner of
its indemnity obligations hereunder unless such failure to notify effectively
forecloses Owner's rights to require a contest of such claim) and shall take no
action with respect to such claim without the prior written consent of Owner for
30 days following the receipt of such notice by Owner; provided, that, in the
case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be
required by law to take action prior to the end of such 30-day period, such Tax
Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax
Indemnitee shall take no action for as long as it is legally able to do so (it
being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed
and xxx for a refund prior to the end of such 30-day period if (i)(A) the
failure to so pay the Tax would result in substantial penalties (unless
immediately reimbursed by Owner) and the act of paying the Tax would not
materially prejudice the right to contest or (B) the failure to so pay would
result in criminal penalties and (ii) such Tax Indemnitee shall take any action
so required in connection with so paying the Tax in a manner that is the least
prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee
shall (provided, that Owner shall have agreed to keep such information
confidential other than to the extent necessary in order to contest the claim)
furnish Owner with copies of any requests for information from any Taxing
Authority relating to such Taxes with respect to which Owner may be required to
indemnify hereunder. If requested by Owner in writing within 30 days after its
receipt of such notice, such Tax Indemnitee shall, at the expense of Owner
(including, without limitation, all reasonable costs, expenses and reasonable
attorneys' and accountants' fees and disbursements), in good faith contest (or,
if permitted by applicable law, allow Owner to contest) through appropriate
administrative and judicial proceedings the validity, applicability or amount of
such Taxes by (I) resisting payment thereof, (II) not paying the same except
under protest if protest is necessary and proper or (III) if the payment is
made, using reasonable efforts to obtain a refund thereof in an appropriate
administrative and/or judicial proceeding. If requested to do so by Owner, the
Tax Indemnitee shall appeal any adverse administrative or judicial decision,
except that the Tax Indemnitee shall not be required to pursue any appeals to
the United States Supreme Court. If and to the extent the Tax Indemnitee is able
to separate the contested issue or issues from other issues arising in the same
administrative or judicial proceeding that are unrelated to the transactions
contemplated by the Operative Agreements without, in the good faith judgment of
such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax
Indemnitee shall permit Owner to control the conduct of any such proceeding and
shall provide to Owner (at Owner's cost and expense) with such information or
data that is in such Tax Indemnitee's control or possession that is reasonably
necessary to conduct such contest. In the case of a contest controlled by a Tax
Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding
the manner of contesting such claim and shall keep Owner reasonably informed
regarding the progress of such contest. A Tax Indemnitee shall not fail to take
any action expressly required by this Section 8.3.4 (including, without
limitation, any action regarding any appeal of an adverse determination with
respect to any claim) or settle or compromise any claim without the prior
written consent of the Owner (except as contemplated by Section 8.3.4(b) or
(c)).
(b) Notwithstanding the foregoing, in no event shall a Tax Indemnitee be
required to pursue any contest (or to permit Owner to pursue any contest) unless
(i) Owner shall have agreed to pay such Tax Indemnitee on demand all reasonable
costs and expenses incurred by such Tax Indemnitee in connection with contesting
such Taxes, including, without limitation, all
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reasonable out of pocket costs and expenses and reasonable attorneys' and
accountants' fees and disbursements, (ii) if such contest shall involve the
payment of the claim, Owner shall advance the amount thereof (to the extent
indemnified hereunder) plus interest, penalties and additions to tax with
respect thereto that are required to be paid prior to the commencement of such
contest on an interest-free after-Tax basis to such Tax Indemnitee (and such Tax
Indemnitee shall promptly pay to the Owner any net realized tax benefits
resulting from such advance including any tax benefits resulting from making
such payment), (iii) such Tax Indemnitee shall have reasonably determined that
the action to be taken will not result in any material risk of forfeiture, sale
or loss of any Pledged Spare Part (unless Owner shall have made provisions to
protect the interests of any such Tax Indemnitee in a manner reasonably
satisfactory to such Tax Indemnitee) (provided, that such Tax Indemnitee agrees
to notify Owner in writing promptly after it becomes aware of any such risk),
(iv) no Event of Default shall have occurred and be continuing unless Owner has
provided security for its obligations hereunder by advancing to such Tax
Indemnitee before proceeding or continuing with such contest, the amount of the
Tax being contested, plus any interest and penalties and an amount estimated in
good faith by such Tax Indemnitee for expenses, and (v) prior to commencing any
judicial action controlled by Owner, Owner shall have acknowledged its liability
for such claim hereunder, provided that Owner shall not be bound by its
acknowledgment if the Final Determination articulates conclusions of law and
fact that demonstrate that Owner has no liability for the contested amounts
hereunder. Notwithstanding the foregoing, if any Tax Indemnitee shall release,
waive, compromise or settle any claim which may be indemnifiable by Owner
pursuant to this Section 8.3 without the written permission of Owner, Owner's
obligation to indemnify such Tax Indemnitee with respect to such claim (and all
directly related claims and claims based on the outcome of such claim) shall
terminate, subject to Section 8.3.4(c), and subject to Section 8.3.4(c), such
Tax Indemnitee shall repay to Owner any amount previously paid or advanced to
such Tax Indemnitee with respect to such claim, plus interest at the rate that
would have been payable by the relevant Taxing Authority with respect to a
refund of such Tax.
(c) Notwithstanding anything contained in this Section 8.3, a Tax
Indemnitee will not be required to contest the imposition of any Tax and shall
be permitted to settle or compromise any claim without Owner's consent if such
Tax Indemnitee (i) shall waive its right to indemnity under this Section 8.3
with respect to such Tax (and any directly related claim and any claim the
outcome of which is determined based upon the outcome of such claim), (ii) shall
pay to Owner any amount previously paid or advanced by Owner pursuant to this
Section 8.3 with respect to such Tax, plus interest at the rate that would have
been payable by the relevant Taxing Authority with respect to a refund of such
Tax, and (iii) shall agree to discuss with Owner the views or positions of any
relevant Taxing Authority with respect to the imposition of such Tax.
8.3.5 REFUND
If any Tax Indemnitee shall receive a refund of, or be entitled to a credit
against other liability for, all or any part of any Taxes paid, reimbursed or
advanced by Owner, such Tax Indemnitee shall pay to Owner within 30 days of such
receipt an amount equal to the lesser of (a) the amount of such refund or credit
plus any net tax benefit (taking into account any Taxes incurred by such Tax
Indemnitee by reason of the receipt of such refund or realization of such
credit) actually realized by such Tax Indemnitee as a result of any payment by
such Tax Indemnitee made pursuant to this sentence (including this clause (a))
and (b) such tax payment,
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reimbursement or advance by Owner to such Tax Indemnitee theretofore made
pursuant to this Section 8.3 (and the excess, if any, of the amount described in
clause (a) over the amount described in clause (b) shall be carried forward and
applied to reduce pro tanto any subsequent obligation of Owner to make payments
to such Tax Indemnitee pursuant to this Section 8.3). If, in addition to such
refund or credit, such Tax Indemnitee shall receive (or be credited with) an
amount representing interest on the amount of such refund or credit, such Tax
Indemnitee shall pay to Owner within 30 days of such receipt or realization of
such credit that proportion of such interest that shall be fairly attributable
to Taxes paid, reimbursed or advanced by Owner prior to the receipt of such
refund or realization of such credit.
8.3.6 TAX FILING
If any report, return or statement is required to be filed with respect to
any Tax which is subject to indemnification under this Section 8.3, Owner shall
timely file the same (except for any such report, return or statement which a
Tax Indemnitee has timely notified the Owner in writing that such Tax Indemnitee
intends to file, or for which such Tax Indemnitee is required by law to file, in
its own name); provided, that the relevant Tax Indemnitee shall furnish Owner
with any information in such Tax Indemnitee's possession or control that is
reasonably necessary to file any such return, report or statement and is
reasonably requested in writing by Owner (it being understood that the Tax
Indemnitee shall not be required to furnish copies of its actual tax returns,
although it may be required to furnish relevant information contained therein).
Owner shall either file such report, return or statement and send a copy of such
report, return or statement to such Tax Indemnitee, or, where Owner is not
permitted to file such report, return or statement, it shall notify such Tax
Indemnitee of such requirement and prepare and deliver such report, return or
statement to such Tax Indemnitee in a manner satisfactory to such Tax Indemnitee
within a reasonable time prior to the time such report, return or statement is
to be filed.
8.3.7 FORMS
Each Tax Indemnitee agrees to furnish from time to time to Owner or
Mortgagee or to such other person as Owner or Mortgagee may designate, at
Owner's or Mortgagee's request, such duly executed and properly completed forms
as may be necessary or appropriate in order to claim any reduction of or
exemption from any withholding or other Tax imposed by any Taxing Authority, if
(x) such reduction or exemption is available to such Tax Indemnitee and (y)
Owner has provided such Tax Indemnitee with any information necessary to
complete such form not otherwise reasonably available to such Tax Indemnitee.
8.3.8 NON-PARTIES
If a Tax Indemnitee is not a party to this Agreement, Owner may require the
Tax Indemnitee to agree in writing, in a form reasonably acceptable to Owner, to
the terms of this Section 8.3 and Section 12.8 prior to making any payment to
such Tax Indemnitee under this Section 8.3.
Note Purchase Agreement
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8.3.9 SUBROGATION
Upon payment of any Tax by Owner pursuant to this Section 8.3 to or on
behalf of a Tax Indemnitee, Owner, without any further action, shall be
subrogated to any claims that such Tax Indemnitee may have relating thereto.
Such Tax Indemnitee shall cooperate with Owner (to the extent such cooperation
does not result in any unreimbursed cost, expense or liability to such Tax
Indemnitee) to permit Owner to pursue such claims.
8.4 PAYMENTS
Any payments made pursuant to Section 8.1 or 8.3 shall be due on the 30th
day after demand therefor and shall be made directly to the relevant Indemnitee
or Tax Indemnitee to Owner, in immediately available funds at such bank or to
such account as specified by such Indemnitee or Tax Indemnitee to Owner, as the
case may be, in written directives to the payor, or, if no such direction shall
have been given, by check of the payor payable to the order of, and mailed to,
such Indemnitee or Tax Indemnitee to Owner, as the case may be, by certified
mail, postage prepaid, at its address as set forth in this Agreement.
8.5 INTEREST
If any amount payable by Owner, any Indemnitee under Section 8.1 is not
paid when due, the person obligated to make such payment shall pay on demand, to
the extent permitted by Law, to the person entitled thereto, interest on any
such amount for the period from and including the due date for such amount to
but excluding the date the same is paid, at the Payment Due Rate. Such interest
shall be paid in the same manner as the unpaid amount in respect of which such
interest is due.
8.6 BENEFIT OF INDEMNITIES
The obligations of Owner in respect of all indemnities, obligations,
adjustments and payments in Section 8.1 or 8.3 are expressly made for the
benefit of, and shall be enforceable by, the Indemnitee or Tax Indemnitee
entitled thereto, notwithstanding any provision of the Trust Indenture.
SECTION 9. ASSIGNMENT OR TRANSFER OF INTEREST
9.1 NOTE HOLDERS
Subject to Section 6.3.2 hereof and Section 2.07 of the Trust Indenture,
any Note Holder may, at any time and from time to time, Transfer or grant
participations in all or any portion of the Series G-1 Equipment Note or Series
B-1 Equipment Note and/or all or any portion of its beneficial interest in its
Series G-1 Equipment Note or Series B-1 Equipment Note to any person (it being
understood that the sale or issuance of Class G-1 Pass Through Certificates by
the Class G-1 Pass Through Trustee and of Class B-1 Pass Through Certificates by
the Class B-1 Pass Through Trustee shall not be considered a Transfer or
participation); provided, that any participant in any such participations shall
not have any direct rights under the Operative
Note Purchase Agreement
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Agreements or any Lien on all or any part of the Collateral and Owner shall not
have any increased liability or obligations as a result of any such
participation. In the case of any such Transfer, the Transferee, by acceptance
of the Series G-1 Equipment Note or Series B-1 Equipment Note, as the case may
be, in connection with such Transfer, shall be deemed to be bound by all of the
covenants of Note Holders contained in the Operative Agreements.
9.2 EFFECT OF TRANSFER
Upon any Transfer in accordance with Section 9.1 (other than any Transfer
by any Note Holder, to the extent it grants only participations in Series G-1
Equipment Note or Series B-1 Equipment Note or in its beneficial interest
therein), Transferee shall be deemed a "Note Holder," for all purposes of this
Agreement and the other Operative Agreements, and the transferring Note Holder
shall be released from all of its liabilities and obligations under this
Agreement and any other Operative Agreements to the extent such liabilities and
obligations arise after such Transfer and, in each case, to the extent such
liabilities and obligations are assumed by the Transferee; provided, that such
transferring Note Holder (and its respective Affiliates, successors, assigns,
agents, servants, representatives, directors and officers) will continue to have
the benefit of any rights or indemnities under any Operative Agreement vested or
relating to circumstances, conditions, acts or events prior to such Transfer.
SECTION 10. SECTION 1110
It is the intention of each of the Owner, the Note Holders (such intention
being evidenced by each of their acceptance of a Series G-1 Equipment Note
and/or Series B-1 Equipment Note), and Mortgagee that Mortgagee shall be
entitled to the benefits of Section 1110 in the event of a case under Chapter 11
of the Bankruptcy Code in which Owner is a debtor.
SECTION 11. CHANGE OF CITIZENSHIP
11.1 GENERALLY
Without prejudice to the representations, warranties or covenants regarding
the status of any party hereto as a Citizen of the United States, each of Owner,
WTC and Mortgagee agrees that it will, immediately upon obtaining knowledge of
any facts that would cast doubt upon its continuing status as a Citizen of the
United States and promptly upon public disclosure of negotiations in respect of
any transaction which would or might adversely affect such status, notify in
writing all parties hereto of all relevant matters in connection therewith.
11.2 MORTGAGEE
Upon WTC giving any notice in accordance with Section 11.1, Mortgagee shall
(if and so long as such citizenship is necessary under the Act as in effect at
such time or, if it is not necessary, if and so long as Mortgagee's citizenship
could have any adverse effect on Owner, or any Note Holder), subject to Section
9.02 of the Trust Indenture, resign as Mortgagee promptly upon its ceasing to be
such a citizen.
Note Purchase Agreement
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SECTION 12. MISCELLANEOUS
12.1 AMENDMENTS
No provision of this Agreement may be amended, supplemented, waived,
modified, discharged, terminated or otherwise varied orally, but only by an
instrument in writing that specifically identifies the provision of this
Agreement that it purports to amend, supplement, waive, modify, discharge,
terminate or otherwise vary and is signed by the party against which the
enforcement of the amendment, supplement, waiver, modification, discharge,
termination or variance is sought. Each such amendment, supplement, waiver,
modification, discharge, termination or variance shall be effective only in the
specific instance and for the specific purpose for which it is given. No
provision of this Agreement shall be varied or contradicted by oral
communication, course of dealing or performance or other manner not set forth in
an agreement, document or instrument in writing and signed by the party against
which enforcement of the same is sought.
12.2 SEVERABILITY
If any provision hereof shall be held invalid, illegal or unenforceable in
any respect in any jurisdiction, then, to the extent permitted by Law, (a) all
other provisions hereof shall remain in full force and effect in such
jurisdiction and (b) such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of such provision in any other
jurisdiction. If, however, any Law pursuant to which such provisions are held
invalid, illegal or unenforceable may be waived, such Law is hereby waived by
the parties hereto to the full extent permitted, to the end that this Agreement
shall be deemed to be a valid and binding agreement in all respects, enforceable
in accordance with its terms.
12.3 SURVIVAL
The indemnities set forth herein shall survive the delivery or return of
the Collateral, the Transfer of any interest by any Note Holder of its Series
G-1 Equipment Note or its Series B-1 Equipment Note, as the case may be, and the
expiration or other termination of this Agreement, any other Operative Agreement
or any Policy Provider Document.
12.4 REPRODUCTION OF DOCUMENTS
This Agreement, all schedules and exhibits hereto and all agreements,
instruments and documents relating hereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed and (b)
financial statements, certificates and other information previously or hereafter
furnished to any party hereto, may be reproduced by such party by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process, and such party may destroy any original documents so
reproduced. Any such reproduction shall be as admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by such
party in the regular course of business) and any enlargement, facsimile or
further reproduction of such reproduction likewise is admissible in evidence.
Note Purchase Agreement
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12.5 COUNTERPARTS
This Agreement and any amendments, waivers, consents or supplements hereto
may be executed in any number of counterparts (or upon separate signature pages
bound together into one or more counterparts), each of which when so executed
shall be deemed to be an original, and all of which counterparts, taken
together, shall constitute one and the same instrument.
12.6 NO WAIVER
No failure on the part of any party hereto to exercise, and no delay by any
party hereto in exercising, any of its respective rights, powers, remedies or
privileges under this Agreement or provided at Law, in equity or otherwise shall
impair, prejudice or constitute a waiver of any such right, power, remedy or
privilege or be construed as a waiver of any breach hereof or default hereunder
or as an acquiescence therein nor shall any single or partial exercise of any
such right, power, remedy or privilege preclude any other or further exercise
thereof by it or the exercise of any other right, power, remedy or privilege by
it. No notice to or demand on any party hereto in any case shall, unless
otherwise required under this Agreement, entitle such party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any party hereto to any other or further action in any
circumstances without notice or demand.
12.7 NOTICES
Unless otherwise expressly permitted by the terms hereof, all notices,
requests, demands, authorizations, directions, consents, waivers and other
communications required or permitted to be made, given, furnished or filed
hereunder shall be in writing (it being understood that the specification of a
writing in certain instances and not in others does not imply an intention that
a writing is not required as to the latter), shall refer specifically to this
Agreement or other applicable Operative Agreement, and shall be personally
delivered, sent by facsimile or telecommunication transmission (which in either
case provides written confirmation to the sender of its delivery), sent by
registered mail or certified mail, return receipt requested, postage prepaid, or
sent by overnight courier service, in each case to the respective address, or
facsimile number set forth for such party in Schedule 1, or to such other
address, facsimile or other number as each party hereto may hereafter specify by
notice to the other parties hereto. Each such notice, request, demand,
authorization, direction, consent, waiver or other communication shall be
effective when received or, if made, given, furnished or filed (a) by facsimile
or telecommunication transmission, when confirmed, or (b) by registered or
certified mail, three Business Days after being deposited, properly addressed,
with the U.S. Postal Service.
12.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE
(a) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF
TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE
CITY AND COUNTY OF NEW
Note Purchase Agreement
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XXXX XXX XX XXX XXXXXX XXXXXX FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTER
RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES THAT SERVICE
OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY
MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE
ADDRESS SET FORTH PURSUANT TO SECTION 12.7. EACH PARTY HERETO HEREBY AGREES THAT
SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS
SECTION 12.8(C), SHALL CONSTITUTE VALID AND EFFECTIVE PERSONAL SERVICE UPON SUCH
PARTY, AND EACH PARTY HERETO HEREBY AGREES THAT THE FAILURE OF ANY OF ITS AGENTS
TO GIVE ANY NOTICE OF SUCH SERVICE TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT
IN ANY WAY THE VALIDITY OF SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED
IN ANY ACTION OR PROCEEDING BASED THEREON.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR
OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN ANY OF THE
ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT THIS
AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS.
(e) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12.9 THIRD-PARTY BENEFICIARY
This Agreement is not intended to, and shall not, provide any person not a
party hereto (other than the Indenture Indemnitees, each of which is an intended
third party beneficiary with respect to the provisions of Section 8.1 and, in
the case of the Tax Indemnitees, Section 8.3) with any rights of any nature
whatsoever against any of the parties hereto and no person not a party hereto
(other than the Indenture Indemnitees, with respect to the provisions of Section
8.1, and, in the case of the Tax Indemnitees, Section 8.3) shall have any right,
power or privilege in respect of any party hereto, or have any benefit or
interest, arising out of this Agreement.
Note Purchase Agreement
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12.10 ENTIRE AGREEMENT
This Agreement, together with the other Operative Agreements, on and as of
the date hereof, constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof, and all prior or contemporaneous
understandings or agreements, whether written or oral, among any of the parties
hereto with respect to such subject matter are hereby superseded in their
entireties.
12.11 FURTHER ASSURANCES
Each party hereto shall execute, acknowledge and deliver or shall cause to
be executed, acknowledged and delivered, all such further agreements,
instruments, certificates or documents, and shall do and cause to be done such
further acts and things, in any case, as any other party hereto shall reasonably
request in connection with the administration of, or to carry out more
effectually the purposes of, or to better assure and confirm into such other
party the rights and benefits to be provided under this Agreement and the other
Operative Agreements.
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Note Purchase Agreement
-35-
IN WITNESS WHEREOF, each of the parties has caused this Series G-1 and
Series B-1 Note Purchase Agreement to be duly executed and delivered as of the
day and year first above written.
JETBLUE AIRWAYS CORPORATION,
Owner
By
-------------------------------------
Name:
Title:
Note Purchase Agreement SIGNATURE PAGE
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly provided herein,
but solely as Mortgagee
By
-------------------------------------
Name:
Title:
Note Purchase Agreement SIGNATURE PAGE
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly provided herein,
but solely as Class G-1 Pass Through
Trustee under the Pass Through Trust
Agreement for the JetBlue Airways
Corporation Class G-1 Pass Through
Trust
By
-------------------------------------
Name:
Title:
Note Purchase Agreement SIGNATURE PAGE
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly provided herein,
but solely as Class B-1 Pass Through
Trustee under the Pass Through Trust
Agreement for the JetBlue Airways
Corporation Class B-1 Pass Through
Trust
By
-------------------------------------
Name:
Title:
Note Purchase Agreement SIGNATURE PAGE
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly provided herein,
but solely as Subordination Agent
By
-------------------------------------
Name:
Title:
Note Purchase Agreement SIGNATURE PAGE
-----------------------
SCHEDULE 1 TO
SERIES G-1 AND B-1 NOTE
PURCHASE AGREEMENT
-----------------------
ACCOUNTS; ADDRESSES
ACCOUNT FOR PAYMENTS ADDRESS FOR NOTICES
-------------------- -------------------
JETBLUE AIRWAYS Account Name: JetBlue Airways JetBlue Airways Corporation
CORPORATION Corporation 00 Xxx Xxxxx Xxx X, Xxxxx 00
Bank: Citibank NA, New York, NY Xxxxxx, XX 00000
ABA# 000-000-000 (000) 000-0000
Acct# 3053-5444 Tax ID: 00-0000000
Ref: JetBlue Airways
WILMINGTON TRUST Bank: Wilmington Trust Company Wilmington Trust Company
COMPANY, Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx Square North
MORTGAGEE ABA# 000-000-000 0000 Xxxxx Xxxxxx Xxxxxx
Account# 078652-000 Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ref: JetBlue 2006 Spare Parts Attention: Corporate Trust
Indenture Administration
Attn: Corporate Trust Facsimile: (000) 000-0000
Administration
WILMINGTON TRUST Bank: Wilmington Trust Company Wilmington Trust Company
COMPANY, AS Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx Square North
SUBORDINATION ABA# 000-000-000 0000 Xxxxx Xxxxxx Xxxxxx
AGENT Account# 078651-000 Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ref: JetBlue 2006 Spare Parts Attention: Corporate Trust
Collection Account Administration
Attn: Corporate Trust Facsimile: (000) 000-0000
Administration
WILMINGTON TRUST Bank: Wilmington Trust Company Wilmington Trust Company
COMPANY, AS PASS Wilmington, Delaware 19890 Xxxxxx Square North
THROUGH TRUSTEE ABA# 000-000-000 0000 Xxxxx Xxxxxx Xxxxxx
FOR THE SERIES Account# 078649-000 Wilmington, Delaware 19890-0001
G-1 PASS THROUGH Ref: JetBlue 2006 Spare Parts Attention: Corporate Trust
TRUST G-1 Administration
Attn: Corporate Trust Facsimile: (000) 000-0000
Administration
WILMINGTON TRUST Bank: Wilmington Trust Copany Wilmington Trust Company
COMPANY, AS PASS Wilmington, Delaware 19890 Xxxxxx Square North
THROUGH TRUSTEE ABA# 000-000-000 0000 Xxxxx Xxxxxx Xxxxxx
FOR THE SERIES Account# 078650-000 Wilmington, Delaware 19890-0001
B-1 PASS THROUGH Ref: JetBlue 2006 Spare Parts Attention: Corporate Trust
TRUST B-1 Administration
Attn: Corporate Trust Facsimile: (000) 000-0000
Administration
Note Purchase Agreement
SCHEDULE 1
SCHEDULE 2 TO
SERIES G-1 AND B-1 NOTE PURCHASE AGREEMENT
CERTAIN TERMS
DEFINED TERM DEFINITION
------------------------ -----------------------------------------------------
Initial Period Debt Rate In the case of the Series G-1 Equipment Notes, for
the first Interest Period 5.60438% per annum, and in
the case of any subsequent Interest Period, LIBOR +
0.23% per annum.
In the case of the Series B-1 Equipment Note, for the
first Interest Period, 8.24938% per annum, and in the
case of any subsequent Interest Period, LIBOR +
2.875% per annum.
Note Purchase Agreement
SCHEDULE 2 PAGE 1
EXHIBIT A
[OPINION OF SPECIAL COUNSEL TO OWNER]
Note Purchase Agreement
EXHIBIT A PAGE 1
EXHIBIT B
[OPINION OF LEGAL DEPARTMENT OF OWNER]
Note Purchase Agreement
EXHIBIT B PAGE 1
EXHIBIT C
[OPINION OF SPECIAL COUNSEL TO MORTGAGEE AND TO THE CLASS G-1 AND B-1 PASS
THROUGH TRUSTEES]
Note Purchase Agreement
EXHIBIT C PAGE 1
EXHIBIT D
[OPINION OF SPECIAL COUNSEL IN OKLAHOMA CITY, OKLAHOMA]
Note Purchase Agreement
EXHIBIT D PAGE 1
EXHIBIT E
[OPINION OF SPECIAL COUNSEL IN PUERTO RICO]
Note Purchase Agreement
EXHIBIT E PAGE 1
