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
================================================================================
Note Purchase Agreement
CONTENTS
PAGE
----
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
Note Purchase Agreement
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CONTENTS
PAGE
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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
Note Purchase Agreement
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CONTENTS
PAGE
----
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
Note Purchase Agreement
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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
Note Purchase Agreement
iv
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
Note Purchase Agreement
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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
Note Purchase Agreement
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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, 195 Broadway, New York, New York 10007,
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;
Note Purchase Agreement
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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 & Williams 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 DeBee Gilchrist, special counsel in Oklahoma
City, Oklahoma, substantially in the form of Exhibit D; and
(E) an opinion of Adsuar Muniz Goycot Besosa, 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 DeBee Gilchrist, 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
Note Purchase Agreement
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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
Note Purchase Agreement
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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,
Note Purchase Agreement
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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.
Note Purchase Agreement
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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
