Exhibit 4.30


 


CONFIDENTIAL:  SUBJECT TO RESTRICTIONS ON DISSEMINATION

SET FORTH IN SECTION 6 OF THIS AGREEMENT


 


PARTICIPATION
AGREEMENT


[NXXXJB]


 


Dated
as of [Date]


 


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 Pass Through Trustee under

each of the Pass Through Trust Agreements


 


One
Airbus Model A320-232 Aircraft

Bearing Manufacturer’s Serial No. [MSN]


 

















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
   

  	
  Definitions
  and Construction

  	
   

  
	
  Section 2.

  	
   

  	
  Secured Loans;
  Closing

  	
   

  
	
  2.1

  	
   

  	
  Making
  of Loans and Issuance of Equipment Notes

  	
   

  
	
  2.2

  	
   

  	
  Closing

  	
   

  
	
  Section 3.

  	
   

  	
  Conditions
  Precedent

  	
   

  
	
  3.1

  	
   

  	
  Conditions
  Precedent to Obligations of Pass Through Trustees

  	
   

  
	
   

  	
   

  	
  3.1.1

  	
  Equipment Notes

  	
   

  
	
   

  	
   

  	
  3.1.2

  	
  Delivery of Documents

  	
   

  
	
   

  	
   

  	
  3.1.3

  	
  Violation of Law

  	
   

  
	
   

  	
   

  	
  3.1.4

  	
  Representations,
  Warranties and Covenants

  	
   

  
	
   

  	
   

  	
  3.1.5

  	
  No Event of Default

  	
   

  
	
   

  	
   

  	
  3.1.6

  	
  No Event of Loss

  	
   

  
	
   

  	
   

  	
  3.1.7

  	
  Title

  	
   

  
	
   

  	
   

  	
  3.1.8

  	
  Certification

  	
   

  
	
   

  	
   

  	
  3.1.9

  	
  Section 1110

  	
   

  
	
   

  	
   

  	
  3.1.10

  	
  Filing

  	
   

  
	
   

  	
   

  	
  3.1.11

  	
  No Proceedings

  	
   

  
	
   

  	
   

  	
  3.1.12

  	
  Governmental Action

  	
   

  
	
   

  	
   

  	
  3.1.13

  	
  Note Purchase Agreement

  	
   

  
	
   

  	
   

  	
  3.1.14

  	
  Perfected Security
  Interest

  	
   

  
	
  3.2

  	
   

  	
  Conditions
  Precedent to Obligations of Mortgagee

  	
   

  
	
   

  	
   

  	
  3.2.1

  	
  Documents

  	
   

  
	
   

  	
   

  	
  3.2.2

  	
  Other Conditions
  Precedent

  	
   

  
	
  3.3

  	
   

  	
  Conditions
  Precedent to Obligations of Owner

  	
   

  
	
   

  	
   

  	
  3.3.1

  	
  Documents

  	
   

  
	
   

  	
   

  	
  3.3.2

  	
  Other Conditions
  Precedent

  	
   

  
	
  3.4

  	
   

  	
  Post-Registration Matters

  	
   

  
	
  Section 4.

  	
   

  	
  Representations
  and Warranties

  	
   

  
	
  4.1

  	
   

  	
  Owner’s
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
  4.1.1

  	
  Organization;
  Qualification

  	
   

  
	
   

  	
   

  	
  4.1.2

  	
  Corporate Authorization

  	
   

  
	
   

  	
   

  	
  4.1.3

  	
  No
  Violation

  	
   

  
	
   

  	
   

  	
  4.1.4

  	
  Approvals

  	
   

  
	
   

  	
   

  	
  4.1.5

  	
  Valid and Binding
  Agreements

  	
   

  
	
   

  	
   

  	
  4.1.6

  	
  Litigation

  	
   

  
	
   

  	
   

  	
  4.1.7

  	
  Financial Condition

  	
   

  
	
   

  	
   

  	
  4.1.8

  	
  Registration and
  Recordation

  	
   

  
	
   

  	
   

  	
  4.1.9

  	
  Location

  	
   

  
	
   

  	
   

  	
  4.1.10

  	
  No Event of Loss

  	
   

  
	
   

  	
   

  	
  4.1.11

  	
  Compliance With Laws

  	
   

  
	
   

  	
   

  	
  4.1.12

  	
  Securities Laws

  	
   

  
	
   

  	
   

  	
  4.1.13

  	
  Broker’s
  Fees

  	
   

  
	
   

  	
   

  	
  4.1.14

  	
  Section 1110

  	
   

  



 


i

















 


	
  4.2

  	
   

  	
  WTC’s
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
  4.2.1

  	
  Organization, Etc

  	
   

  
	
   

  	
   

  	
  4.2.2

  	
  Corporate Authorization

  	
   

  
	
   

  	
   

  	
  4.2.3

  	
  No
  Violation

  	
   

  
	
   

  	
   

  	
  4.2.4

  	
  Approvals

  	
   

  
	
   

  	
   

  	
  4.2.5

  	
  Valid and Binding
  Agreements

  	
   

  
	
   

  	
   

  	
  4.2.6

  	
  Citizenship

  	
   

  
	
   

  	
   

  	
  4.2.7

  	
  No Liens

  	
   

  
	
   

  	
   

  	
  4.2.8

  	
  Litigation

  	
   

  
	
   

  	
   

  	
  4.2.9

  	
  Securities Laws

  	
   

  
	
   

  	
   

  	
  4.2.10

  	
  Investment

  	
   

  
	
   

  	
   

  	
  4.2.11

  	
  Taxes

  	
   

  
	
   

  	
   

  	
  4.2.12

  	
  Broker’s
  Fees

  	
   

  
	
  Section 5.

  	
   

  	
  Covenants,
  Undertakings and Agreements

  	
   

  
	
  5.1

  	
   

  	
  Covenants of Owner

  	
   

  
	
   

  	
   

  	
  5.1.1

  	
  Corporate
  Existence; U.S. Air Carrier

  	
   

  
	
   

  	
   

  	
  5.1.2

  	
  Notice of Change of
  Location

  	
   

  
	
   

  	
   

  	
  5.1.3

  	
  Certain Assurances

  	
   

  
	
   

  	
   

  	
  5.1.4

  	
  Securities Laws

  	
   

  
	
  5.2

  	
   

  	
  Covenants of WTC

  	
   

  
	
   

  	
   

  	
  5.2.1

  	
  Liens

  	
   

  
	
   

  	
   

  	
  5.2.2

  	
  Securities Act

  	
   

  
	
   

  	
   

  	
  5.2.3

  	
  Performance of
  Agreements

  	
   

  
	
   

  	
   

  	
  5.2.4

  	
  Withholding Taxes

  	
   

  
	
  5.3

  	
   

  	
  Covenants of Note Holders

  	
   

  
	
   

  	
   

  	
  5.3.1

  	
  Withholding Taxes

  	
   

  
	
   

  	
   

  	
  5.3.2

  	
  Transfer; Compliance

  	
   

  
	
  5.4

  	
   

  	
  Agreements

  	
   

  
	
   

  	
   

  	
  5.4.1

  	
  Quiet Enjoyment

  	
   

  
	
   

  	
   

  	
  5.4.2

  	
  Consents

  	
   

  
	
   

  	
   

  	
  5.4.3

  	
  Insurance

  	
   

  
	
   

  	
   

  	
  5.4.4

  	
  Extent of
  Interest of Note Holders

  	
   

  
	
   

  	
   

  	
  5.4.5

  	
  Foreign Registration

  	
   

  
	
   

  	
   

  	
  5.4.6

  	
  Interest in Certain
  Engines

  	
   

  
	
   

  	
   

  	
  5.4.7

  	
  Lease Assignment

  	
   

  
	
  Section 6.

  	
   

  	
  Confidentiality

  	
   

  
	
  Section 7.

  	
   

  	
  Indemnification
  and Expenses

  	
   

  
	
  7.1

  	
   

  	
  General Indemnity

  	
   

  
	
   

  	
   

  	
  7.1.1

  	
  General

  	
   

  
	
   

  	
   

  	
  7.1.2

  	
  Exclusions

  	
   

  
	
   

  	
   

  	
  7.1.3

  	
  After Tax Basis; Etc

  	
   

  
	
   

  	
   

  	
  7.1.4

  	
  Notice and Contest

  	
   

  
	
   

  	
   

  	
  7.1.5

  	
  Subrogation;
  Reimbursement

  	
   

  



 


ii

















 


	
  7.2

  	
   

  	
  Transaction Costs

  	
   

  
	
   

  	
   

  	
  7.2.1

  	
  Invoices and Payment

  	
   

  
	
   

  	
   

  	
  7.2.2

  	
  Payment of Other
  Expenses

  	
   

  
	
  Section 8.

  	
   

  	
  Assignment
  or Transfer of Interests

  	
   

  
	
  8.1

  	
   

  	
  Note
  Holders

  	
   

  
	
  8.2

  	
   

  	
  Effect of Transfer

  	
   

  
	
  Section 9.

  	
   

  	
  Section 1110

  	
   

  
	
  Section 10.

  	
   

  	
  Change of
  Citizenship

  	
   

  
	
  10.1

  	
   

  	
  Generally

  	
   

  
	
  10.2

  	
   

  	
  Mortgagee

  	
   

  
	
  Section 11.

  	
   

  	
  Miscellaneous

  	
   

  
	
  11.1

  	
   

  	
  Amendments

  	
   

  
	
  11.2

  	
   

  	
  Severability

  	
   

  
	
  11.3

  	
   

  	
  Survival

  	
   

  
	
  11.4

  	
   

  	
  Counterparts

  	
   

  
	
  11.5

  	
   

  	
  No
  Waiver

  	
   

  
	
  11.6

  	
   

  	
  Notices

  	
   

  
	
  11.7

  	
   

  	
  Governing
  Law; Submission to Jurisdiction; Venue

  	
   

  
	
  11.8

  	
   

  	
  Third Party Beneficiary

  	
   

  
	
  11.9

  	
   

  	
  Entire Agreement

  	
   

  
	
  11.10

  	
   

  	
  Further Assurances

  	
   

  



 


ANNEX, SCHEDULES AND
EXHIBITS 


 


	
  ANNEX A

  	
   

  	
  –

  	
   

  	
  Definitions

  
	
  SCHEDULE 1

  	
   

  	
  –

  	
   

  	
  Accounts;
  Addresses

  
	
  SCHEDULE 2

  	
   

  	
  –

  	
   

  	
  Loan Amounts

  
	
  SCHEDULE 3

  	
   

  	
  –

  	
   

  	
  Certain
  Terms

  
	
  SCHEDULE 4

  	
   

  	
  –

  	
   

  	
  Permitted
  Countries

  
	
  EXHIBIT A

  	
   

  	
  –

  	
   

  	
  Opinion of special New
  York counsel to Owner

  
	
  EXHIBIT B

  	
   

  	
  –

  	
   

  	
  Opinion of in-house
  counsel to Owner

  
	
  EXHIBIT C

  	
   

  	
  –

  	
   

  	
  Opinion of special
  counsel in Oklahoma City, Oklahoma

  
	
  EXHIBIT D

  	
   

  	
  –

  	
   

  	
  Opinion of special counsel
  to Mortgagee

  
	
  EXHIBIT E

  	
   

  	
  –

  	
   

  	
  Opinion of special
  French counsel

  



 


iii

















 


PARTICIPATION AGREEMENT


 


PARTICIPATION AGREEMENT [NXXXJB], dated as of [Date] (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 Pass
Through Trust Agreements, (each, a “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 and AVSA S.A.R.L. have entered into
the Purchase Agreement, pursuant to which, among other things, AVSA S.A.R.L.
has agreed to sell to Owner and Owner has agreed to purchase from AVSA
S.A.R.L., certain aircraft, including the Aircraft.


 


B.                                     Pursuant to each of the Pass Through
Trust Agreements, on the Issuance Date the Pass Through Trusts were created and
the Pass Through Certificates were issued and sold.


 


C.                                     Pursuant to the Note Purchase Agreement,
each Pass Through Trustee has agreed to use a portion of the proceeds from the
issuance and sale of the Pass Through Certificates issued by each Pass Through
Trust to purchase from the Owner, on behalf of the related Pass Through Trust,
the Equipment Note bearing the same interest rate as the Pass Through
Certificates issued by such Pass Through Trust.


 


D.                                    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 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 Obligations and Related Secured Obligations, including, without limitation,
Owner’s obligations under the Equipment Notes.


 


E.                                      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 shall have the respective meanings set forth
or incorporated by reference, and shall be


 

















 


construed and interpreted in the manner described, in
Annex A.  The “General Provisions”
set forth in Annex A are hereby incorporated as if set forth in full
herein.


 


Section 2.                                          Secured Loans; Closing.


 


2.1                                 Making of Loans and Issuance of Equipment Notes.  Subject to
the terms and conditions of this Agreement, on the date hereof or on such other
date agreed to by the parties hereto (the “Closing Date”):  each Pass Through Trustee shall make a
secured loan to Owner in the amount in Dollars opposite such Trustee’s  name on Schedule 2, such loan to be
evidenced by one or more Equipment Notes, dated the Closing Date, issued to the
Subordination Agent as the registered holder on behalf of each such Pass
Through Trustee for the related Pass Through Trust by Owner in accordance with
this Agreement and the Trust Indenture of the Series set forth opposite such
Trustee’s name on Schedule 2, in an aggregate principal amount equal to
the amount of the secured loan made by each such Pass Through Trustee.


 


2.2                                 Closing.


 


(a)                                  The Closing shall occur at the offices of
Vedder, Price, Kaufman & Kammholz, P.C., 805 Third Avenue, New York, New
York  10022, or such other place as the
parties shall agree.


 


(b)                                 All payments pursuant to this
Section 2 shall be made in immediately available funds to [Owner’s] [AVSA
S.A.R.L.’s] account set forth in Schedule 1 hereto as directed by Owner.


 


Section 3.                                          Conditions Precedent.


 


3.1                                 Conditions Precedent to Obligations of Pass Through
Trustees. 
The obligation of each Pass Through Trustee to make the secured loan
described in Section 2.1 on the Closing Date is subject to satisfaction or
waiver by each such Trustee, on or prior to the Closing Date, of the conditions
precedent set forth below in this Section 3.1:


 


3.1.1                        Equipment Notes. 
The Owner shall have tendered the Equipment Notes to the Mortgagee for
authentication and the Mortgagee shall have authenticated such Equipment Notes
and shall have tendered the Equipment Notes to the Subordination Agent on
behalf of each Pass Through Trustee, against receipt of the loan proceeds, in
accordance with Section 2.1.


 


3.1.2                        Delivery
of Documents. 
The Subordination Agent on behalf of each Pass Through Trustee shall
have received executed counterparts or conformed copies of the following
documents:


 


(i)                                     this Agreement;


 


(ii)                                  the Trust Indenture;


 


(iii)                               the initial Trust Indenture Supplement;


 


2

















 


(iv)                              the Consent and Agreement, Engine Consent
and Agreement and the Airbus Consent;


 


(v)                                 the Equipment Notes dated the Closing
Date; provided, that only the Subordination Agent shall receive the
authenticated Equipment Notes;


 


(vi)                              an excerpted copy of the Purchase
Agreement and Engine Agreement to the extent relating to Airframe
Manufacturer’s or Engine Manufacturer’s warranties or related obligations
assigned pursuant to the Trust Indenture; provided, that only Mortgagee shall
receive copies of such excerpted agreements (copies of which may be inspected
by Pass Through Trustees and their respective special counsel on the Closing
Date, but after the Closing Date such copies shall be retained by Mortgagee and
may be inspected and reviewed by Pass Through Trustees, the Policy Provider or
their respective counsel if and only if there shall have occurred and be
continuing a Default or an Event of Default);


 


(vii)                           the Bills of Sale;


 


(viii)                        the broker’s report and insurance
certificates required by Section 4.06 of the Trust Indenture;


 


(ix)                                (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 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;


 


(x)                                   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);


 


(xi)                                a copy of a current, valid [Export
Certificate of Airworthiness for the Aircraft duly issued by the DGAC]
[Standard FAA Certificate of Airworthiness for the Aircraft];


 


(xii)                             [an application for registration of the
Aircraft with the FAA in the name of Owner, provided, that only special counsel
in Oklahoma City, Oklahoma shall receive the sole executed copy thereof for
filing with the FAA] [a copy of the FAA certificate of registration for the
Aircraft];


 


(xiii)                          the Financing Statement;


 


(xiv)                         the following opinions of counsel, in
each case dated the Closing Date:


 


3

















 


(A)                              an opinion of Vedder Price
Kaufman & Kammholz, P.C., special New York counsel to Owner,
substantially in the form of Exhibit A;


 


(B)                                an opinion of Owner’s General Counsel,
substantially in the form of Exhibit B;


 


(C)                                an opinion of DeBee, Gilchrist &
Lidia, special counsel in Oklahoma City, Oklahoma, substantially in the form of
Exhibit C;


 


(D)                               an opinion of Morris, James,
Hitchens & Williams LLP, special counsel to Mortgagee, substantially
in the form of Exhibit D; and


 


(E)                                 an opinion of special French counsel,
substantially in the form of Exhibit E; and


 


(xv)                            the French Pledge Agreement.


 


3.1.3                        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 Pass Through Trustee, Subordination Agent or Mortgagee to
execute, deliver and perform the Operative Agreements to which any of them is a
party or (b) any Pass Through Trustee to make the loan contemplated by
Section 2.1, to acquire an Equipment Note or to realize the benefits of
the security afforded by the Trust Indenture.


 


3.1.4                        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.


 


3.1.5                        No Event of Default.  On the
Closing Date, no event shall have occurred and be continuing, or would result
from the mortgage of the Aircraft, which constitutes a Default or an Event of
Default.


 


3.1.6                        No Event of Loss.  No Event of Loss with respect to the
Airframe or any Engine shall have occurred and no circumstance, condition, act
or event that, with the giving of notice or lapse of time or both, would give
rise to or constitute an Event of Loss with respect to the Airframe or any
Engine shall have occurred.


 


3.1.7                        Title.  Owner shall have good title [,subject to
filing and recordation of the FAA Bill of Sale with the FAA,] to the Aircraft,
free and clear of Liens, except (a) the Lien created by the Trust
Indenture and the initial Trust Indenture Supplement, (b) Liens permitted
by clause (d) (solely for Taxes not yet due) of the definition of “Permitted Liens” in Annex A to
the Trust Indenture and (c) Liens permitted by clauses (e) and (g) of
such definition.


 


4

















 


3.1.8                        Certification. 
The Aircraft shall have been duly certificated by the FAA as to type and
airworthiness in accordance with the terms of the Purchase Agreement.


 


3.1.9                        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 Airframe and Engines and to exercise any of its other rights
or remedies to sell, lease or dispose of the Aircraft as provided in the Trust
Indenture in the event of a case under Chapter 11 of the Bankruptcy Code
in which Owner is a debtor.


 


3.1.10                  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) the Financing Statement shall have been
duly filed (or shall be in the process of being so duly filed) in the
appropriate jurisdiction.


 


3.1.11                  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.


 


3.1.12                  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 and be in full force and effect on the
Closing Date.


 


3.1.13                  Note
Purchase Agreement. 
The conditions precedent to the obligations of the Pass Through Trustees
and the other requirements relating to the Aircraft and the Equipment Notes set
forth in the Note Purchase Agreement shall have been satisfied.


 


3.1.14                  Perfected
Security Interest. 
On the Closing Date, after giving effect to the filing of the FAA Filed
Documents and the Financing Statement, Mortgagee shall have a duly perfected
first priority security interest in all of Owner’s right, title and interest in
the Aircraft, subject only to Permitted Liens.


 


3.2                                 Conditions Precedent to Obligations of Mortgagee.  The
obligation of Mortgagee to authenticate the 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 3.2.


 


3.2.1                        Documents.  Executed originals of the
agreements, instruments, certificates or documents described in
Section 3.1.2 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.


 


5

















 


3.2.2                        Other
Conditions Precedent. 
Each of the conditions set forth in Sections 3.1.3, 3.1.4, 3.1.5
and 3.1.9 shall have been satisfied unless the failure of any such condition to
be satisfied is the result of any action or inaction by Mortgagee.


 


3.3                                 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 3.3.


 


3.3.1                        Documents.  Executed originals of the
agreements, instruments, certificates or documents described in
Section 3.1.2 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:


 


(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, as 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);


 


3.3.2                        Other
Conditions Precedent. 
Each of the conditions set forth in Sections 3.1.3, 3.1.4, 3.1.6,
3.1.7, 3.1.8, 3.1.10, 3.1.11, 3.1.12 and 3.1.13 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.


 


3.4                                 Post-Registration Matters.  Promptly
following the registration of the Aircraft and the recordation of the FAA Filed
Documents pursuant to the Act, Owner will cause DeBee, Gilchrist & Lidia,
special counsel in Oklahoma City, Oklahoma, to deliver to Owner, each  Pass Through Trustee and Mortgagee a
favorable opinion or opinions addressed to each of them with respect to such
registration and recordation.


 


Section 4.                                          Representations and Warranties.


 


4.1                                 Owner’s Representations and Warranties.  Owner
represents and warrants to each Pass Through Trustee, Subordination Agent and
Mortgagee that as of the date hereof:


 


4.1.1                        Organization;
Qualification. 
Owner is a corporation duly incorporated, validly existing and in good
standing under the Laws of the State of Delaware having an organizational


 


6

















 


identification number 2936994 and its true and complete name as
indicated on the public record of the State of Delaware is “JetBlue Airways
Corporation”.  Owner 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 a 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.


 


4.1.2                        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 a party, and the performance of its obligations thereunder.


 


4.1.3                        No Violation. 
The execution and delivery by Owner of the Operative Agreements to which
it 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 (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 Permitted
Liens) upon the Aircraft 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.


 


4.1.4                        Approvals.  The execution and delivery by
Owner of the Operative Agreements to which it 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 (w) the FAA Filed Documents and the Financing Statement (and continuation
statements periodically), (x) filings, recordings, notices or other
ministerial actions pursuant to any routine recording, contractual or
regulatory requirements applicable to it, (y) filings, recordings, notices
or other actions contemplated by the Operative Agreements in connection with
the leasing or reregistration of the Aircraft and (z) filings, recordings,
notices or other actions all of which have either been, or will be, completed
on or prior to the Closing Date and will be in full force and effect on the Closing
Date.


 


4.1.5                        Valid
and Binding Agreements. 
The Operative Agreements to which it 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


 


7

















 


of creditors generally and general principles of equity, whether
considered in a proceeding at law or in equity.


 


4.1.6                        Litigation. 
Except as set forth in Owner’s most recent Annual Report on
Form 10-K, as amended, filed by Owner with the SEC on or prior to the
Closing Date, or in any Quarterly Report on Form 10-Q or Current Report on
Form 8-K filed by Owner with the SEC subsequent to such Form 10-K and
on or prior to the Closing Date, no action, claim or proceeding is now pending
or, to the Actual Knowledge of Owner, threatened, against Owner, before any
court, governmental body, arbitration board, tribunal or administrative agency,
which is reasonably likely to be determined adversely to Owner and if
determined adversely to Owner would result in a Material Adverse Change.


 


4.1.7                        Financial
Condition. 
The audited consolidated balance sheet of Owner with respect to Owner’s
most recent fiscal year included in Owner’s most recent Annual Report on
Form 10-K, as amended, filed by Owner with the SEC, and the related
consolidated statements of operations and cash flows for the period then ended
have been prepared in conformity with GAAP and present fairly in all material
respects the financial condition of Owner and its consolidated subsidiaries as
of such date and the results of its operations and cash flows for such period,
and since the date of such balance sheet, there has been no material adverse
change in such financial condition or operations of Owner, except for matters
disclosed in (a) the financial statements referred to above or
(b) any subsequent Quarterly Report on Form 10-Q or Current Report on
Form 8-K filed by Owner with the SEC on or prior to the date hereof or
(c) any press releases issued by Owner and posted on Owner’s website or in
any other public filing with the SEC.


 


4.1.8                        Registration
and Recordation. 
Except for (a) the registration of the Aircraft with the FAA
pursuant to the Act in the name of Owner, (b) the filing for recordation
(and recordation) of the FAA Filed Documents, (c) the filing of the
Financing Statement (and continuation statements relating thereto at periodic
intervals) and (d) the affixation of the nameplates referred to in
Section 4.02(f) of the Trust Indenture, no further action, including any
filing or 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 the Mortgagee’s security interest in the Aircraft, as
against Owner and any other Person, in each case, in any applicable
jurisdictions in the United States.


 


4.1.9                        Location.  The “location” (as such term
is used in 9-307 of Article 9 of the UCC) of Owner is the State of Delaware.


 


4.1.10                  No Event of Loss.  No Event of Loss has occurred with respect
to the Airframe or any Engine, and, to the Actual Knowledge of Owner, no
circumstance, condition, act or event has occurred that, with the giving of
notice or lapse of time or both gives rise to or constitutes an Event of Loss
with respect to the Airframe or any Engine.


 


4.1.11                  Compliance
With Laws.


 


(a)                                  Owner is a U.S. Air Carrier.


 


8

















 


(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.


 


4.1.12                  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 the
Aircraft or any of the Equipment Notes 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.


 


4.1.13                  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.


 


4.1.14                  Section 1110.  Mortgagee is entitled to the benefits of
Section 1110 (as currently in effect) with respect to the right to take
possession of the Airframe and Engines and to exercise any of its other rights
or remedies to sell, lease or dispose of the Aircraft as provided in the Trust
Indenture in the event of a case under Chapter 11 of the Bankruptcy Code
in which Owner is a debtor.


 


4.2                                 WTC’s Representations and Warranties.  WTC  represents and warrants (with respect to
Section 4.2.10 solely in its capacity as Subordination Agent) to Owner
that:


 


4.2.1                        Organization, Etc.  WTC is a
Delaware banking corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware, authorized to do business as
a Delaware banking corporation with banking authority to execute and deliver,
and perform its obligations under, the Mortgagee Agreements, the Pass Through
Trustee Agreements and the Subordination Agent Agreements.


 


4.2.2                        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, as Pass Through Trustee or as Subordination Agent, as the case
may be, of the Mortgagee Agreements, the Pass Through Trustee Agreements, and
the Subordination Agent Agreements and the performance of its obligations
thereunder.


 


4.2.3                        No Violation. 
The execution and delivery by WTC, in its individual capacity or as
Mortgagee, as Pass Through Trustee or as Subordination Agent, as the case may
be, of the Mortgagee Agreements, the Pass Through Trustee Agreements and the
Subordination Agent Agreements, the performance by WTC, in its individual
capacity or as Mortgagee, as Pass Through Trustee or as 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


 


9

















 


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 relating to any Plan)
as Mortgagee, a 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 as Mortgagee, as 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 its individual capacity or as
Mortgagee, as 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, as Pass
Through Trustee or Subordination Agent, is a party or by which WTC, in its
individual capacity or as Mortgagee, as Pass Through Trustee or Subordination
Agent, or any of their respective properties is bound.


 


4.2.4                        Approvals.  The execution and delivery by
WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or
Subordination Agent, as the case may be, of the Mortgagee Agreements, the Pass
Through Trustee Agreements and the Subordination Agent Agreements, the
performance by WTC, in its individual capacity or as Mortgagee, as 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, as 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 Statement.


 


4.2.5                        Valid
and Binding Agreements. 
The Mortgagee Agreements, the Pass Through Trustee Agreements and the
Subordination Agent Agreements 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, as Pass Through
Trustee or Subordination Agent, as the case may be, and are enforceable against
WTC, in its individual capacity or as Mortgagee, as 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.


 


4.2.6                        Citizenship. 
WTC is a Citizen of the United States.


 


4.2.7                        No
Liens.  On the
Closing Date, there are no Liens attributable to WTC in respect of all or any
part of the Collateral.


 


4.2.8                        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,
as Pass Through Trustee or Subordination Agent, before any court,
administrative agency or


 


10

















 


tribunal which, if determined adversely to WTC, in its individual
capacity or as Mortgagee, as 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, as Pass Through Trustee or Subordination
Agent, as the case may be, to perform its obligations under any of the
Mortgagee Agreements, the Pass Through Trustee Agreements or the Subordination
Agent Agreements.


 


4.2.9                        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 the Aircraft or any interest in the Collateral or any of the
Equipment Notes 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 and the Pass Through Trustees, except for the offering and
sale of the Pass Through Certificates.


 


4.2.10                  Investment. 
The Equipment Notes to be acquired by the Subordination Agent are being
acquired by it for the account of the Pass Through Trustees, 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 8, the disposition by it
of its Equipment Notes shall at all times be within its control.


 


4.2.11                  Taxes.  There are no Taxes payable by
any 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 Pass Through Trustee or
WTC, as the case may be, of this Agreement or any of the Pass Through Trustee
Agreements (other than franchise or other taxes based on or measured by any
fees or compensation received by any such Pass Through Trustee or WTC, as the
case may be, for services rendered in connection with the transactions
contemplated by any of the Pass Through Trust Agreements), and there are no
Taxes payable by any Pass Through Trustee or WTC, as the case may be, imposed
by the State of Delaware or any political subdivision thereof in connection
with the acquisition, possession or ownership by any such Pass Through Trustee
of any of the Equipment Notes (other than franchise or other taxes based on or
measured by any fees or compensation received by any such Pass Through Trustee
or WTC, as the case may be, for services rendered in connection with the transactions
contemplated by any of the Pass Through Trust Agreements), and, assuming that
the trusts created by the Pass Through Trust Agreements 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.


 


4.2.12                  Broker’s Fees. 
No Person acting on behalf of WTC, in its individual capacity or as
Mortgagee, any Pass Through Trustee or Subordination Agent, is or will be
entitled to any broker’s fee, commission or finder’s fee in connection with the
Transactions.


 


Section 5.                                          Covenants, Undertakings and Agreements.


 


5.1                                 Covenants of Owner.  Owner
covenants and agrees, at its own cost and expense, with Note Holder and
Mortgagee as follows:


 


11

















 


5.1.1                        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.


 


5.1.2                        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 Article 9 of the UCC) and
will promptly take any action required by Section 5.1.3(c) as a result of
such change in location.


 


5.1.3                        Certain Assurances.


 


(a)                                  Owner shall duly 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 Mortgagee shall
reasonably request for accomplishing the purposes of this Agreement and the
other Operative Agreements, provided that any instrument or other document so
executed by Owner will not expand any obligations or limit any rights of Owner
in respect of the transactions contemplated by any Operative Agreement.


 


(b)                                 Owner shall promptly take such action
with respect to the recording, filing, re-recording and refiling of the Trust
Indenture and any supplements thereto, including, without limitation, the
initial Trust Indenture Supplement, as shall be necessary to establish and
protect the perfection and priority of the Lien created by the Trust Indenture.


 


(c)                                  Owner, at its sole cost and expense, will
cause the FAA Filed Documents, the Financing Statement (and any amendments
thereto necessitated by any combination, consolidation or merger of the Owner
pursuant to Section 4.07 of the Trust Indenture, or any change in location
described in Section 5.1.2) and, upon the written direction of Mortgagee,
together with copies thereof suitable for filing, any continuation statements
in respect of the Financing Statement as shall be necessary, subject only to
the execution and delivery thereof by Mortgagee, as applicable, to be duly and
timely filed and recorded, or filed for recordation, to the extent permitted
under the Act (with respect to the FAA Filed Documents) or the UCC or similar
law of any other applicable jurisdiction.


 


5.1.4                        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 the Aircraft or any interest in any of the 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.


 


5.2                                 Covenants of WTC.  WTC in its individual capacity or as
Mortgagee, as each Pass Through Trustee or Subordination Agent, as the case may
be, covenants and agrees with Owner as follows:


 


5.2.1                        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 the


 


12

















 


Aircraft, (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 the Aircraft and (c) will personally
hold harmless and indemnify Owner, each Note Holder and 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 the Aircraft, imposed
on, incurred by or asserted against any of the foregoing as a consequence of
any such Lien.


 


5.2.2                        Securities Act. 
WTC in its individual capacity or as Mortgagee, as Pass Through Trustee
or Subordination Agent, will not offer any beneficial interest or Security
relating to the ownership of the Aircraft or any interest in the Collateral, or
any of the 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, 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.


 


5.2.3                        Performance
of Agreements. 
WTC, in its individual capacity and as Mortgagee, as Pass Through
Trustee or Subordination Agent, as the case may be, shall perform its
obligations under the Indenture Agreements, the Pass Through Trustee Agreements
and the Subordination Agent Agreements in accordance with the terms thereof.


 


5.2.4                        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.  Any amount payable hereunder shall be paid
within 30 days after receipt by WTC of a written demand therefor.


 


5.3                                 Covenants of Note Holders.  Each Note
Holder (including Subordination Agent) as to itself only covenants and agrees
with Owner and Mortgagee as follows:


 


5.3.1                        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
failure to provide Mortgagee necessary certificates or forms to substantiate
the right to exemption from, or reduction of, such withholding taxes or 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.


 


5.3.2                        Transfer;
Compliance.


 


(a)                                  Such Note Holder will (i) not
transfer any 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,


 


13

















 


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 Equipment Note set forth in the Trust Indenture.


 


(b)                                 Except for the transfer of the interests
of each Pass Through Trustee in the Equipment Notes to the trustee of the
Related Trust (as defined in each Pass Through Trust Agreement) in accordance
with the Pass Through Trust Agreement, each Note Holder will not sell, assign,
convey, exchange or otherwise transfer any Equipment Note or any interest in,
or represented by, any Equipment Note (it being understood that this provision
is not applicable to the 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, a 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 Equipment Note or any interest in, or represented by, any
Equipment Note unless the subsequent transferee also makes the representation
described in clause (i) above and agrees to comply with
Section 5.3.2(a) and this clause (ii).


 


5.4                                 Agreements.


 


5.4.1                        Quiet Enjoyment.


 


(a)                                  Each 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 (or any Permitted Sublessee’s)
rights in accordance with the Trust Indenture to the quiet enjoyment, possession
and use of the Aircraft.


 


5.4.2                        Consents.  Each 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 or of Mortgagee under the terms of any of the
Operative Agreements which by its terms is not to be unreasonably withheld.


 


5.4.3                        Insurance.  (a) Each Note Holder, Pass
Through Trustee, the Subordination Agent and Mortgagee agrees not to obtain or
maintain insurance for its own account as permitted by Section 4.06 of the
Trust Indenture if such insurance would limit or otherwise adversely affect


 


14

















 


the coverage of any insurance required to be obtained or maintained by
Owner pursuant to Section 4.06 and Annex B of the Trust Indenture.


 


(b)                                 Each Note Holder, the Owner, the Pass
Through Trustee, the Subordination Agent, Mortgagee and each other Additional
Insured agrees that upon receipt of any proceeds of insurance in connection
with the loss or damage to the Aircraft, other than as contemplated by the
Indenture, such Person will pay such amounts to the Mortgagee for application
in accordance with the terms of the Indenture.


 


5.4.4                        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 Break Amount, 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.


 


5.4.5                        Foreign
Registration. 
Each Note Holder and Mortgagee hereby agrees, for the benefit of Owner
but subject to the provisions of Section 4.02(b) and 4.02(d) of the Trust
Indenture:


 


(a)                                  that Owner shall be entitled to register
the Aircraft or cause the Aircraft to be registered in a country other than the
United States subject to compliance with the following:


 


(i)                                     each of the following requirements is
satisfied:


 


(A)                              no Special Default or Event of Default
shall have occurred and be continuing at the time of such registration; and


 


(B)                                such proposed change of registration is
made in connection with a Permitted Lease to a Permitted Air Carrier;


 


(ii)                                  the Mortgagee shall have received an
opinion of counsel (subject to customary exceptions) reasonably satisfactory to
the Mortgagee addressed to the Mortgagee to the effect that:


 


(A)                              such country would recognize the Owner’s
ownership interest in the Aircraft;


 


(B)                                the obligations of Owner, and the rights
and remedies of Mortgagee, under the Trust Indenture are valid, binding and
enforceable under the laws of such jurisdiction (or the laws of the
jurisdiction to which the laws of such jurisdiction would refer as the
applicable governing law);


 


(C)                                after giving effect to such change in
registration, the Lien of the Trust Indenture on the Owner’s right, title and
interest in and to the Aircraft shall either (x) continue as a valid and
duly perfected first priority security interest and all filing, recording or
other action necessary to protect the same shall have been accomplished (or, if
such opinion cannot be given at the time of such proposed change in
registration because such change in registration is not yet


 


15

















 


effective, (1) the opinion shall detail what
filing, recording or other action is necessary and (2) the Mortgagee shall
have received a certificate from Owner that all possible preparations to accomplish
such filing, recording and other action shall have been done, and such filing,
recording and other action shall be accomplished and a supplemental opinion to
that effect shall be delivered to the Mortgagee on or prior to the effective
date of such change in registration) or (y) continue as provided in the
preceding clause (x) (subject to the provisions of the parenthetical in
such clause) except for any filing, recording or other action required as of a
date after the effective date of such change in registration, and specifying
the nature thereof;


 


(D)                               it is not necessary, solely as a
consequence of such change in registration and without giving effect to any
other activity of the Mortgagee (or any Affiliate of the Mortgagee), for the
Mortgagee to qualify to do business in such jurisdiction as a result of such
reregistration in order to exercise any rights or remedies with respect to the
Aircraft; and


 


(E)                                 unless Owner shall have agreed to provide
insurance covering the risk of requisition of use of the Aircraft by the
government of such country (so long as the Aircraft is registered under the
laws of such country), the laws of such country require fair compensation by
the government of such country payable in currency freely convertible into Dollars
and freely removable from such country (without license or permit, unless Owner
prior to such proposed reregistration has obtained such license or permit) for
the taking or requisition by such government of such use;


 


(b)                                 In addition, as a condition precedent to
any change in registration Owner shall have given Mortgagee assurances
reasonably satisfactory to the Mortgagee:


 


(i)                                     to the effect that the provisions of
Section 4.06 of the Trust Indenture have been complied with after giving
effect to such change of registration;


 


(ii)                                  of the payment by Owner of all reasonable
out-of-pocket expenses of each Note Holder and Mortgagee in connection with
such change of registry, including, without limitation (1) the reasonable
fees and disbursements of counsel to Mortgagee, (2) any filing or
recording fees, Taxes or similar payments incurred in connection with the
change of registration of the Aircraft and the creation and perfection of the
security interest therein in favor of Mortgagee for the benefit of Note Holders,
and (3) all costs and expenses incurred in connection with any filings
necessary to continue in the United States the perfection of the security
interest in the Aircraft in favor of Mortgagee for the benefit of Note Holders;
and


 


(iii)                               to the effect that the tax and other
indemnities in favor of each person named as an indemnitee under any other
Operative Agreement afford each such person substantially the same protection
as provided prior to such change of registration (or Owner shall have agreed upon
additional indemnities that, together with such original indemnities, in the
reasonable judgment of Mortgagee, afford such protection);


 


16

















 


(c)                                  Mortgagee agrees that if Owner requests a
change of registration pursuant to this Section 5.4.5, it will take all
such action reasonably requested by Owner in order to effect such a change in
registration, including the execution and delivery of such documents and
instruments as may be necessary or advisable in connection therewith; and


 


(d)                                 Anything to the contrary in the Operative
Agreements notwithstanding, each of the parties hereto agrees that so long as
the conditions in paragraphs (a) and (b) of this Section 5.4.5 have
been satisfied (including the legal opinion required under
Section 5.4.5(a)(ii)), (A) reregistration of the Aircraft may be
effected in a jurisdiction in which (i) the Aircraft is not registered in
the name of the Owner and/or (ii) the Trust Indenture is not recorded of
record in such jurisdiction and/or no filing is made in such jurisdiction in
respect of the Lien of the Trust Indenture and (B) perfection of the
Mortgagee’s Lien on the Collateral may be effected through a pledge or other
unconventional (from a United States perspective) structure.  The provisions of this Section 5.4.5(d)
are not intended to, and shall not, permit the Owner to effect any financing of
the Aircraft in connection with any such reregistration.


 


5.4.6                        Interest
in Certain Engines. 
Each Note Holder and Mortgagee agree, for the benefit of each of the
lessor, conditional seller, mortgagee or secured party of any airframe or
engine leased to, or purchased by, Owner or any Permitted Lessee subject to a
lease, conditional sale, trust indenture or other security agreement that it
will not acquire or claim, as against such lessor, conditional seller,
mortgagee or secured party, any right, title or interest in any engine as the
result of such engine being installed on the Airframe at any time while such
engine is subject to such lease, conditional sale, trust indenture or other
security agreement and owned by such lessor or conditional seller or subject to
a trust indenture or security interest in favor of such mortgagee or secured
party.


 


5.4.7                        Lease Assignment.  Owner shall
collaterally assign any lease effected in accordance with
Section 4.02(b)(viii) of the Trust Indenture with a base term in excess of
two years to Mortgagee as security for Owner’s obligations under the Operative
Agreements pursuant to an instrument of assignment reasonably satisfactory to
Mortgagee; provided, however, that unless an Event of Default
shall be continuing, the Owner shall be entitled to exercise all of the rights
of the “lessor” under such lease to the exclusion of Mortgagee.  In addition, any such lease entered into by
Owner and so collaterally assigned shall provide that any payments due under
such lease shall be paid by the lessee directly to Owner unless an Event of
Default shall have occurred and be continuing and the lessee has been notified by
Mortgagee thereof in writing, in which case such payments shall, so long as
such Event of Default shall be continuing, be paid by the lessee directly to
Mortgagee for application as provided in Section 6.06 of the Trust
Indenture.


 


Section 6.                                          Confidentiality.  Owner, Note
Holders and Mortgagee shall keep the Participation 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, a Pass Through
Trustee’s, the 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) Owner’s, a Note Holder’s, a Liquidity Provider’s, a Pass
Through Trustee’s, the Policy Provider’s, Mortgagee’s or other Indenture
Indemnitee’s counsel


 


17

















 


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 Service
auditors or any stock exchange, (D) with respect to a Note Holder, the
Policy Provider or any Pass Through Trustee, to a nationally recognized rating
agency for the purpose of obtaining a rating on the Equipment Notes or the Pass
Through Trust 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 7.                                          Indemnification and Expenses.


 


7.1                                 General Indemnity.


 


7.1.1                        General.  Subject to
Section 7.1.4, Owner hereby agrees to indemnify each Indemnitee against,
and agrees to protect, save and keep harmless each of them from any and all
Expenses imposed on, incurred by or asserted against any Indemnitee arising out
of or resulting from any one or more of the following:  (i) the Aircraft, the Airframe, any
Engine or any Part, including without limitation (A) the operation,
possession, use, maintenance, overhaul, testing, registration, reregistration,
delivery, non-delivery, sublease, nonuse, modification, alteration, repair,
storage, airworthiness, replacement, substitution, abandonment or return of the
Aircraft, the Airframe, any Engine or any Part by the Owner, any lessee or any
other Person whatsoever (each, an “Indemnified
Act”), whether or not
such Indemnified Act is in compliance with the terms of the Trust Indenture,
including, without limitation, tort liability, claims for death, personal
injury or property damage or other loss or harm to any person whatsoever and
claims relating to any laws, rules or regulations pertaining to such
Indemnified Act including environmental control, noise and pollution laws,
rules or regulations and (B) the manufacture, design, acceptance,
rejection, delivery, or condition of the Aircraft, the Airframe, any Engine or
any Part, including, without limitation, latent and other defects, whether or
not discoverable, or trademark or copyright infringement; (ii) the
Operative Agreements or the enforcement of any of the terms of the Operative Agreements;
and (iii) the offer, sale and delivery of any Equipment Notes, any pass
through certificates issued in respect thereof or successor debt obligations
issued in connection with the refunding or refinancing thereof or any interest
therein or represented thereby or in any way relating to or arising out of the
offer or sale of any interest in the Collateral or any similar interest arising
out of the Trust Indenture and the Collateral (including, without limitation,
any claim arising out of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or any other Federal or state statute, law or
regulation, or at common law or otherwise relating to securities (collectively “Securities Liabilities”)) (the indemnity provided in this
clause (iii) to extend also to any Person who controls an Indemnitee, its
successors, assigns, employees, directors, officers, servants and agents within
the meaning of Section 15 of the Securities Act of 1933, as amended).


 


18

















 


7.1.2                        Exclusions. 
The foregoing indemnity in Section 7.1.1 shall not extend to any
Expense of any Indemnitee to the extent attributable to one or more of the
following:  (1) any representation
or warranty by such Indemnitee or any Related Indemnitee (as defined below)
thereof in the Operative Agreements or any Pass Through Agreements being
incorrect in any material respect; (2) the failure by such Indemnitee or
Related Indemnitee thereof to perform or observe any agreement, covenant or
condition in any of the Operative Agreements or any Pass Through Agreements;
(3) acts or omissions involving the willful misconduct or gross negligence
of such Indemnitee or Related Indemnitee thereof (other than gross negligence
imputed to such Indemnitee or Related Indemnitee thereof solely by reason of
its interest in the Aircraft); (4) in the case of any Note Holder, a
disposition (voluntary or involuntary) by such Note Holder of all or any part
of its interest in an Equipment Note or, in the case of any other Indemnitee, a
disposition by such Indemnitee of all or any part of such Indemnitee’s interest
in the Airframe, any Engine, Operative Agreements or any Pass Through
Agreements; (5) losses arising out of inspection rights under the Trust
Indenture; (6) other than during the continuation of an Event of Default,
the authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any of the Operative
Agreements or any Pass Through Agreements, which amendments, supplements,
waivers or consents are not required pursuant to the terms of the Operative
Agreements or any Pass Through Agreements and not requested by Owner;
(7) any loss of tax benefits, any Tax, or increase in tax liability under
any tax law whether or not Owner is required to indemnify thereof or pursuant
to this Agreement; (8) any fine or expense incurred by any Indemnitee as a
result of such Indemnitee’s having engaged in a “prohibited transaction” within
the meaning of Section 406 of ERISA or Section 4975 of the Code;
(9) any amount which constitutes an expense that is to be borne by any
Indemnitee pursuant to the Operative Agreements or any Pass Through Agreements;
(10) any costs associated with overhead or normal administration of the
Collateral; (11) any amount which constitutes a loss of future profits;
(12) acts or omissions involving the negligence of such Indemnitee in the
operation of an aircraft which is involved in an accident with the Aircraft or
an aircraft on which an Engine is installed; (13) any amount to the extent
attributable to the failure of the Mortgagee, Subordination Agent or Pass
Through Trustee to distribute funds received and distributable by it in
accordance with the terms of the Trust Indenture, the Intercreditor Agreement
or the Pass Through Trust Agreement, respectively; (14) except to the extent
attributable to acts or event occurring on or prior thereto, acts or events
which occur after the termination of the Trust Indenture in accordance with its
terms; (15)  any amount resulting from
any Lien on the Collateral which such Indemnitee or any of its Related
Indemnitees is required to discharge under the Operative Agreements or any Pass
Through Agreement; (16) amounts to the extent attributable to the offer or sale
by such Indemnitee or any Related Indemnitee of any interest in the Aircraft,
any Equipment Note, any Pass Through Certificate or any similar interest in
violation of the Securities Act, other applicable federal, state or foreign
securities laws or any other law on or prior to the applicable Issuance Date;
or (17) amounts related to activities or transactions of such Indemnitee (or
any Related Indemnitee) not arising out of or resulting from, or attributable
to the transactions contemplated by the Operative Agreements or the Pass
Through Agreements.


 


For purposes of this
Section 7.1.2, “Related Indemnitee” means, with respect to any Indemnitee,
any director, officer, employee, agent, servant or Affiliate of any thereof.


 


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7.1.3                        After Tax Basis; Etc.  Owner
further agrees that any payment or indemnity pursuant to this Section 7.1
in respect of any “Expense” shall be in an amount which, after deduction of all
Taxes required to be paid by such recipient with respect to such payment or
indemnity under the laws of any federal, state or local government or taxing
authority in the United States, or under the laws of any taxing authority or
governmental subdivision of a foreign country, or any territory or possession
of the United States or any international authority, shall be equal to the
excess, if any, of (A) the amount of such Expense over (B) the net
reduction in Taxes required to be paid by such recipient resulting from the
accrual or payment of such Expense.


 


The agreement of Owner in
this Section 7.1 constitutes a separate agreement with respect to each
Indemnitee and is enforceable directly by each such Indemnitee.


 


7.1.4                        Notice and Contest.  If a claim
is made against an Indemnitee involving one or more Expenses and such
Indemnitee has notice thereof, such Indemnitee shall promptly after receiving
such notice give notice of such claim to Owner; provided that the failure to
provide such notice shall not release Owner from any of its obligations to
indemnify hereunder except to the extent that such failure results in an
additional Expense to Owner (in which case Owner shall not be responsible for
such additional Expense) or Owner is prejudiced as a result of the failure to
give such notice in a timely fashion, and no payment by Owner to an Indemnitee
pursuant to this Section 7.1 shall be deemed to constitute a waiver or
release of any right or remedy which Owner may have against such Indemnitee for
any actual damages as a result of the failure by such Indemnitee to give Owner
such notice.  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 7.1.2 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, (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 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.  An Indemnitee
may participate at its own expense and with its own counsel in any judicial
proceeding controlled by Owner pursuant to the preceding provisions.  Notwithstanding any of the foregoing, Owner
shall not be entitled to assume responsibility for and control of any such judicial
or administrative proceedings if any Event of Default shall have occurred and
be continuing, 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 the Aircraft or the Collateral, unless Owner shall have posted a bond
or other security reasonably satisfactory to the relevant Indemnitee with
respect to such risk or if such proceedings could entail any risk of criminal
liability being imposed on such Indemnitee.


 


Each affected Indemnitee
shall supply Owner with such information reasonably requested by Owner as is
necessary or advisable for Owner to control or participate in any proceeding to


 


20

















 


the extent permitted by
this Section 7.1.  Such Indemnitee shall
not 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 7.1.


 


Owner shall supply each
affected Indemnitee with such information reasonably requested by such
Indemnitee as is necessary or advisable for such Indemnitee to control or
participate in any proceeding to the extent permitted by this Section 7.1.


 


7.1.5                        Subrogation;
Reimbursement. 
To the extent of any payment of any Expense pursuant to this
Section 7.1, Owner, without any further action, shall be subrogated to any
claims the affected Indemnitee may have relating thereto (other than with
respect to any of such Indemnitee’s insurance policies).  Such Indemnitee agrees to give such further
assurances or agreements and to cooperate with Owner to permit Owner to pursue
such claims, if any, to the extent reasonably requested by Owner.


 


In the event that Owner
shall have paid an Expense to an Indemnitee pursuant to this Section 7.1,
and such Indemnitee subsequently shall be reimbursed in respect of such
indemnified amount from any other Person, such Indemnitee shall promptly pay
Owner the amount of such reimbursement, including interest received
attributable thereto, provided that no Event of Default has occurred and is
continuing, in which case such amounts shall be paid over to Mortgagee to hold
as security for Owner’s obligations as provided in Section 6.06 of the
Trust Indenture.


 


Any indemnity payable
under this Section 7.1 shall be payable by Owner within 30 days of
the demand therefor (accompanied by supporting documentation) by the Indemnitee
entitled thereto.


 


7.2                                 Transaction Costs.


 


7.2.1                        Invoices
and Payment. 
Each of the Mortgagee, the Pass Through Trustees, and the Subordination
Agent 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 120th day after the Closing
Date).  If so submitted and approved,
the Owner agrees promptly, but in any event no later than the 135th day
after the Closing Date, to pay Transaction Expenses.


 


7.2.2                        Payment
of Other Expenses. 
Owner shall pay (i) the ongoing fees and expenses of Mortgagee as
set out in separate letter agreement, and (ii) all reasonable
out-of-pocket costs and expenses (including the reasonable fees and
disbursements of counsel) incurred by Mortgagee or any Note Holder in
connection with any waiver, amendment or modification of any Operative
Agreement to the extent requested by Owner.


 


Section 8.                                          Assignment or Transfer of Interests.


 


8.1                                 Note Holders. 
Subject to Section 5.3.2 hereof and Section 2.07 of the Trust
Indenture, any Note Holder may, at any time and from time to time, Transfer or
grant


 


21

















 


participations in all or any portion of the Equipment Notes and/or all
or any portion of its beneficial interest in its Equipment Notes and the
Collateral to any person (it being understood that the sale or issuance of Pass
Through Certificates by a 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 Agreements
or any Lien on all or any part of the Aircraft or 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 Equipment Notes in connection with
such Transfer, shall be deemed to be bound by all of the covenants of Note
Holders contained in the Operative Agreements.


 


8.2                                 Effect of Transfer.  Upon any
Transfer in accordance with Section 8.1 (other than any Transfer by any
Note Holder, to the extent it only grants participations in Equipment Notes 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, and each reference herein to Note Holder, shall thereafter be deemed a
reference to such Transferee for all purposes, 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 9.                                          Section 1110.  It is the
intention of each of Owner, the Note Holders (such intention being evidenced by
each of their acceptance of an 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 10.                                   Change of Citizenship.


 


10.1                           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.


 


10.2                           Mortgagee.  Upon WTC giving any notice in
accordance with Section 10.1, 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 (subject to the appointment of a replacement) as Mortgagee
promptly upon its ceasing to be such a citizen.


 


Section 11.                                   Miscellaneous.


 


22

















 


11.1                           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.


 


11.2                           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.


 


11.3                           Survival.  Except as expressly provided
herein, the indemnities set forth herein shall survive the delivery or return
of the Aircraft, the Transfer of any interest by any Note Holder of its
Equipment Note and the expiration or other termination of this Agreement or any
other Operative Agreement.


 


11.4                           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.


 


11.5                           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.


 


11.6                           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


 


23

















 


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 by facsimile or telecommunication transmission,
when received unless received outside of business hours, in which case on the
next open of business on a Business Day.


 


11.7                           Governing Law; Submission to Jurisdiction; Venue.


 


(a)                                  THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW 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 YORK AND OF THE
UNITED STATES 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 TO THE 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 11.6.  EACH PARTY HERETO
HEREBY AGREES THAT SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN
ACCORDANCE WITH THIS SECTION 11.7(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,


 


24

















 


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.


 


11.8                           Third Party Beneficiary.  This
Agreement is not intended to, and shall not, provide any person not a party
hereto (other than the Liquidity Providers, the Policy Provider, the Escrow
Agent and the Paying Agent, each of which is an intended third party
beneficiary with respect to the provisions of Section 7.1) with any rights
of any nature whatsoever against any of the parties hereto and no person not a
party hereto (other than the Liquidity Providers, the Escrow Agent and the
Paying Agent, with respect to the provisions of Section 9.1) shall have
any right, power or privilege in respect of any party hereto, or have any
benefit or interest, arising out of this Agreement.


 


11.9                           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.


 


11.10                     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 effectively 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.


 


[This
space intentionally left blank]


 


25

















 


IN
WITNESS WHEREOF, each of the parties has caused this
Participation Agreement to be duly executed and delivered as of the day and
year first above written.


 


	
   

  	
   

  	
  JETBLUE AIRWAYS CORPORATION,

  Owner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  not in its individual capacity, except as

  expressly provided herein, but solely as

  Mortgagee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  not in its individual capacity, except as

  expressly provided herein, but solely as Pass

  Through Trustee under the Pass Through

  Trust Agreement for the JetBlue Airways

  Pass Through Trust, 2004-1G-1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  not in its individual capacity, except as

  expressly provided herein, but solely as Pass

  Through Trustee under the Pass Through

  Trust Agreement for the JetBlue Airways

  Pass Through Trust, 2004-1G-2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


26

















 


	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  not in its individual capacity, except as

  expressly provided herein, but solely as Pass

  Through Trustee under the Pass Through

  Trust Agreement for the JetBlue Airways

  Pass Through Trust, 2004-1C

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  not in its individual capacity, except as

  expressly provided herein, but solely as

  Subordination Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


27

















 


SCHEDULE 1

TO

PARTICIPATION AGREEMENT


 


ACCOUNTS; ADDRESSES


 


Address For Notices


 


	
  JETBLUE
  AIRWAYS CORPORATION

  	
   

  	
  JetBlue
  Airways Corporation

  118-29 Queens Blvd.

  Forest Hills, NY  11375

  Attention:  Vice President – Corporate
  Finance

  Facsimile:

  
	
   

  	
   

  	
   

  
	
  AVSA
  S.A.R.L.

  	
   

  	
  AVSA
  S.A.R.L.

  2, rond-point Maurice Bellonte

  31700 Blagnac, France

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Account
  Details:

  Credit Lyonnais New York

  for the account of AVSA S.A.R.L.

  ABA No. 026008073

  Account No. 0118 363 000 100

  Attention:  William McIllvain

  Ref:  JetBlue/MSN [MSN]

  
	
   

  	
   

  	
   

  
	
  WILMINGTON
  TRUST COMPANY,

  AS MORTGAGEE

  	
   

  	
  Wilmington
  Trust Company

  One Rodney Square

  1100 North Market Street

  Wilmington, Delaware 19890-0001

  Attention:  Corporate Trust
  Administration

  Facsimile:  (302) 636-4140

  Telephone:  (302) 636-6000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Account
  Details:

  
	
   

  	
   

  	
   

  
	
  WILMINGTON
  TRUST COMPANY,

  AS SUBORDINATION AGENT

  	
   

  	
  Wilmington
  Trust Company

  ABA No. 031100092

  Account No. [          ]

  Ref. N[XXX]JB

  



 


1

















 


	
  WILMINGTON
  TRUST COMPANY,

  AS PASS THROUGH TRUSTEE FOR THE

  2004-1G-1 PASS THROUGH TRUST

  	
   

  	
  Wilmington
  Trust Company

  One Rodney Square

  1100 North Market Street

  Wilmington, Delaware 19890-0001

  Attention:  Corporate Trust
  Administration

  Facsimile:  (302) 636-4140

  Telephone:  (302) 636-6000

  
	
   

  	
   

  	
   

  
	
  WILMINGTON
  TRUST COMPANY,

  AS PASS THROUGH TRUSTEE FOR THE

  2004-1G-2 PASS THROUGH TRUST

  	
   

  	
  Wilmington
  Trust Company

  One Rodney Square

  1100 North Market Street

  Wilmington, Delaware 19890-0001

  Attention:  Corporate Trust
  Administration

  Facsimile:  (302) 636-4140

  Telephone:  (302) 636-6000

  
	
   

  	
   

  	
   

  
	
  WILMINGTON
  TRUST COMPANY,

  AS PASS THROUGH TRUSTEE FOR THE

  2004-1C PASS THROUGH TRUST

  	
   

  	
  Wilmington
  Trust Company

  One Rodney Square

  1100 North Market Street

  Wilmington, Delaware 19890-0001

  Attention:  Corporate Trust
  Administration

  Facsimile:  (302) 636-4140

  Telephone:  (302) 636-6000

  



 


2

















 


SCHEDULE 2

TO

PARTICIPATION AGREEMENT


 


LOANS


 


	
  Pass Through

  Trustee

  	
   

  	
  Series of

  Equipment Notes

  	
   

  	
  Dollar Amount

  of Loan

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


SCHEDULE 3

TO

PARTICIPATION AGREEMENT


 


CERTAIN TERMS


 




	
  Minimum
  Liability Insurance Amount:

  	
   

  	
  $

  	
  300,000,000

  






 


1

















 


SCHEDULE 4

TO

PARTICIPATION AGREEMENT


 


PERMITTED COUNTRIES


 


	
  Argentina

  	
  Morocco

  
	
  Australia

  	
  Netherlands

  
	
  Austria

  	
  New
  Zealand

  
	
  Bahamas

  	
  Norway

  
	
  Belgium

  	
  Oman

  
	
  Brazil

  	
  Paraguay

  
	
  Canada

  	
  People’s
  Republic of China

  
	
  Chile

  	
  Philippines

  
	
  Cyprus

  	
  Poland

  
	
  Czech
  Republic

  	
  Portugal

  
	
  Denmark

  	
  Qatar

  
	
  Egypt

  	
  Republic
  of China (Taiwan)

  
	
  Ecuador

  	
  Singapore

  
	
  France

  	
  Slovakia

  
	
  Germany

  	
  South
  Africa

  
	
  Greece

  	
  South
  Korea

  
	
  Hungary

  	
  Spain

  
	
  Iceland

  	
  Sri
  Lanka

  
	
  India

  	
  Sweden

  
	
  Indonesia

  	
  Switzerland

  
	
  Ireland

  	
  Thailand

  
	
  Italy

  	
  Tobago

  
	
  Jamaica

  	
  Trinidad

  
	
  Japan

  	
  Tunisia

  
	
  Jordan

  	
  Turkey

  
	
  Kuwait

  	
  United
  Kingdom

  
	
  Luxembourg

  	
  Uruguay

  
	
  Malaysia

  	
  Venezuela

  
	
  Malta

  	
   

  
	
  Mexico

  	
   

  



 


1

















 


EXHIBIT A


 


[FORM OF OPINION OF OWNER’S
SPECIAL NEW YORK COUNSEL]


 


To the Persons Listed on
Schedule I

Attached Hereto


 


Re:                               Mortgage of Airbus Model A320-232
Aircraft with Manufacturer’s

Serial Number [MSN] and U.S. Registration Number NXXXJB


 


Gentlemen:


 


We have been requested by
JetBlue Airways Corporation, a
Delaware corporation (the “Company”), to act as special New York counsel
with respect to, and to render this opinion letter in connection with, the
transactions contemplated by the Participation Agreement [NXXXJB], dated as of
[Date] (the “Participation
Agreement”), among Wilmington
Trust Company, a Delaware banking corporation (“WTC”),
as Mortgagee (the “Mortgagee”), the Company, as Owner, and WTC, in
its capacity as Subordination Agent under the Intercreditor Agreement (as
defined in the Participation Agreement) and as Pass Through Trustee under the
Pass Through Trust Agreements (as defined in the Participation Agreement).  Capitalized terms used herein and not
otherwise defined herein have the respective meanings given those terms in the
Participation Agreement.


 


In connection with this
opinion letter we have examined, among other things, originals or copies
certified or otherwise identified to our satisfaction of the following
documents:


 


(i)                                     Participation Agreement;


 


(ii)                                  Trust Indenture;


 


(iii)                               Trust Indenture Supplement No. 1;


 


(iv)                              Consent and Agreement;


 


(v)                                 Engine Consent and Agreement;


 


(vi)                              Forms of the Equipment Notes; and


 


(vii)                           Bills of Sale.


 


We have also examined and
relied upon such other documents and such other corporate records, certificates
and other statements of governmental officials and corporate officers and other
representatives of the Company as we have deemed necessary or appropriate for
the purposes of this opinion.  As to
certain facts material to the opinions expressed herein, we have relied upon
representations and warranties contained in the Operative Agreements.  The opinions expressed herein are subject to
the following exceptions, assumptions, qualifications and limitations:


 


1

















 


A.                                   The opinions set forth below are limited
to the laws of the State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of Delaware, except that
we express no opinion with respect to (i) the laws, regulations or
ordinances of any county, town or municipality or governmental subdivision or
agency thereof, (ii) state securities or blue sky laws or federal
securities laws, including the Securities Act and the Investment Company Act of
1940, (iii) any federal or state tax, antitrust or fraudulent transfer of
conveyance laws, (iv) the Employee Retirement Income Security Act of 1974,
as amended, or (v) the Act (except as expressly provided in
paragraph 3 below), or any other laws, rules or regulations governing,
regulating or relating to the acquisition, ownership, registration, use or sale
of an aircraft, airframe or aircraft engine or to the particular nature of the
equipment to be acquired by the Owner. 
In addition, our opinions are based upon a review of those laws,
statutes, rules and regulations which, in our experience, are normally
applicable to transactions of the type contemplated by the Participation
Agreement.


 


B.                                     The opinion set forth in paragraph 1
below is subject to (i) limitations on enforceability arising from
applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
fraudulent conveyance, fraudulent transfer, preferential transfer and similar
laws relating to or affecting the rights and remedies of the creditors or
lessors generally and the effect of general principles of equity, including,
without limitation, laches and estoppel as equitable defenses and concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered or applied in a proceeding in equity or at law)
and considerations of impracticability or impossibility of performance, and
defenses based upon unconscionability of otherwise enforceable obligations in
the context of the factual circumstances under which enforcement thereof is
sought and (ii) the qualification that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.  In addition,
certain remedial and procedural provisions of the Operative Agreements to which
the Company is a party (the “Company
Documents”) and the
Trust Indenture are or may be unenforceable in whole or in part, but the
inclusion of such provisions does not affect the validity of those agreements
and does not, in our opinion, make the remedies provided in those agreements,
or otherwise available under applicable law, inadequate for the practical
realization of the substantive benefits purported to be provided thereby,
except for the economic consequences resulting from any delay imposed by, or
any procedure required by, applicable laws, rules, regulations and by
constitutional requirements.  We express
no opinion as to (i) any provision contained in any Operative Agreement
(a) providing for indemnification or exculpation of any Person for such
Person’s gross negligence, willful misconduct, recklessness or unlawful conduct
or in respect of liabilities under the Securities Act, (b) providing for
late payment charges or an increase in interest rate upon delinquency in
payment or the occurrence of a default or other specified event but only to the
extent such provision is deemed to constitute a penalty or liquidated damages
provision, (c) as such provision relates to the subject matter
jurisdiction of federal courts or the waiver of inconvenient forum with respect
to proceedings in federal courts, (d) that purports to establish (or may
be construed to establish) evidentiary standards or (e) providing for the
waiver of any statutory right or any broadly or vaguely stated rights or
unknown future rights, or any waiver which is against public policy
considerations or (ii) Section 11.2 or 11.7(c) of the Participation
Agreement or any comparable provision of any other Operative Agreement.  Under certain circumstances the requirement
that the provisions of an Operative Agreement may be modified or waived only in
writing or only in a specific instance


 


2

















 


and provisions to the
effect that failure or delay in exercising any right, remedy, power and/or
privilege will not impair or waive such right, remedy, power and/or privilege
may be unenforceable to the extent that an oral agreement has been effected or
a course of dealing has occurred modifying such provisions.  A court may modify or limit contractual agreements
regarding attorneys’ fees.


 


C.                                     To the extent that our opinions expressed
herein involve conclusions as to the matters set forth in the opinions dated
the date hereof of Morris, James, Hitchens & Williams LLP or DeBee,
Gilchrist & Lidia being delivered to you on the date hereof, we have assumed,
without independent investigation, the correctness of the matters set forth in
such opinions.


 


D.                                    We have assumed the due authorization,
execution and delivery of the Operative Agreements by each of the parties
thereto, that each of such parties has the power and authority to execute,
deliver and perform each such Operative Agreement and has obtained or made all
necessary consents, approvals, filings and registrations in connection
therewith (except any required under New York law by the Company), that such
execution, delivery and performance does not violate its charter, by-laws or
similar instrument, that each Operative Agreement constitutes the legal, valid
and binding obligation of each party thereto (other than the Company)
enforceable against such Person in accordance with its terms, that value has
been given by each Pass Through Trustee to the Company under the Trust
Indenture, that the Company has rights in the Collateral, that each of the
Company and WTC is duly organized, validly existing and in good standing in its
jurisdiction of organization and qualified to transact business in each other
jurisdiction where such qualification is required.


 


E.                                      We have assumed the due authorization,
execution and issuance of the Equipment Notes by the Company and the due
authentication of the Equipment Notes by the Mortgagee and the delivery thereof
against payment therefor, all in accordance with the Participation Agreement
and the Trust Indenture, and that the Equipment Notes conform to the forms
thereof examined by us.


 


F.                                      We have assumed that all signatures on
documents examined by us are genuine, that all persons signing such documents
have legal capacity, that all documents submitted to us as originals are
authentic and that all documents submitted to us as copies or specimens conform
with the originals, which facts we have not independently verified.


 


G.                                     We express no opinion as to any provision
in any Operative Agreement that is contrary to Section 9-401, or
Part VI of Article 9, of the UCC.


 


H.                                    We have not made any examination of, and
express no opinion with respect to (and to the extent relevant have assumed the
accuracy and sufficiency of), (i) descriptions of, the legal or beneficial
ownership of, or the title or condition of title to, the Collateral or any
other property covered by any of the Operative Agreements, (ii) except as
expressly set forth in paragraphs 3 and 5 below, the existence, creation,
validity or attachment of any Lien thereof, (iii) except as expressly set
forth in paragraph 3 below, the perfection of any Lien thereon and
(iv) the priority of any Lien thereon.


 


3

















 


I.                                         The opinions expressed herein are given
as of the date hereof.  We assume no
obligation to advise you of any facts or circumstance that may come to our
attention, or any changes in law that may occur after the date hereof, which
may affect the opinion expressed herein.


 


J.                                        To the extent the opinions rendered refer
to security interests in proceeds, we note that Section 9-315 of the UCC
provides that proceeds of a security interest to which the UCC is applicable is
continuously perfected, but becomes unperfected unless one of the measures
required to be taken by Section 9-315(d) thereof is taken within 21 days
after receipt of the proceeds by the “debtor.”


 


Based on and subject to
the foregoing, we are of the opinion that:


 


1.                                       Each Company
Document constitutes the valid and binding obligation of the Company and is
enforceable against the Company in accordance with its terms.


 


2.                                       Except for the
matters referred to in clauses (i), (ii) and (iii) of
paragraph 3 below, no approval, authorization or other action by or filing
with any governmental authority is required for the execution and delivery by
the Company of the Company Documents or the consummation of the transactions
contemplated thereby to occur at the Closing.


 


3.                                       Except for
(i) the registration of the Aircraft with the FAA pursuant to the Act,
(ii) the filing and recordation in accordance with the Act of the FAA
Filed Documents, and assuming that at the time of such filing no other
unrecorded document relating to the Aircraft has been filed pursuant to the Act
and (iii) the filing of the Financing Statement referred to in
Section 3.1.14 of the Participation Agreement, and the filing of periodic
continuation statements with respect thereto, (a) no further filing or
recording of any document is necessary (x) to establish the Company’s
title to the Airframe and Engines, and (y) to create a valid security
interest in the Company’s interest as owner of the Airframe and Engines, and
(b) no further filing or recording of any document in the State of New
York, under the Act or under the UCC as currently in effect in New York is
required to perfect a security interest in the Company’s right, title and
interest in the Collateral, to the extent it is subject to Article 9 of
the UCC, in favor of the Mortgagee pursuant to the Trust Indenture.


 


4.                                       So long as the
Company, on the date hereof, holds an air carrier operating certificate issued
by the Secretary of Transportation pursuant to Chapter 447 of
Title 49 of the United States Code for aircraft capable of carrying 10 or
more individuals or 6,000 pounds or more of cargo, the Mortgagee will be
entitled to the benefits of Section 1110 of Title 11 of the United
States Code with respect to the Airframe and Engines delivered on the date
hereof in connection with any case commenced by or against the Company under
Chapter 11 of Title 11 of the United States Code.


 


5.                                       Upon issuance,
execution, authentication and delivery of the Equipment Notes at the Closing,
the Trust Indenture creates the security interest in favor of the Mortgagee, as
trustee for the benefit of the holders of the Equipment Notes, in the
Collateral it purports to create to the extent that the UCC applies to a
security interest in such property.


 


4

















 


This opinion is being
delivered pursuant to Section 3.1.2(xvi)(A) of the Participation
Agreement.  This opinion may be relied
upon by you (and any permitted Transferee under Section 8.1 of the
Participation Agreement) in connection with the matters set forth herein and,
without our prior written consent, may not be relied upon for any other purpose
and may not be furnished to any other Person for any purpose.


 


	
   

  	
  Very
  truly yours,

  



 


5

















 


SCHEDULE I


 


Wilmington
Trust Company, individually, as Mortgagee, as Subordination Agent and as each
Pass Through Trustee


 


Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity Provider


 


Morgan
Stanley Capital Services Inc., as Above-Cap Liquidity Provider


 


MBIA
Insurance Corporation, as Policy Provider


 


Moody’s
Investors Service, Inc.


 


Morgan
Stanley & Co. Incorporated, as representative for Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and
Credit Lyonnais Securities (USA) Inc.


 


Standard &
Poor’s Ratings Group


 


6

















 


EXHIBIT B


 


[FORM OF OPINION OF OWNER’S
IN-HOUSE COUNSEL]


To the Persons Listed on

Schedule I Hereto


 


Re:                               Mortgage of Airbus Model A320-232
Aircraft with Manufacturer’s Serial Number [MSN] and U.S. Registration
Number NXXXJB


 


Ladies
and Gentlemen:


 


I am Vice President and
General Counsel of JetBlue Airways Corporation,
a Delaware corporation (the “Company”), and have acted in such capacity in
connection with the transactions contemplated by the Participation Agreement
[NXXXJB] dated as of [Date], among Wilmington Trust Company, a Delaware
banking corporation, as Mortgagee, Subordination Agent under the Intercreditor
Agreement (as defined in the Participation Agreement) and as Pass Through
Trustee under the Pass Through Trust Agreements (as defined in the
Participation Agreement) and the Company, as Owner (the “Participation Agreement”).  All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given those terms
in the Participation Agreement.  This
opinion letter is being furnished to you pursuant to Section 3.1.2(xiv)(B)
of the Participation Agreement.


 


In rendering the opinions
set forth herein, I have examined:


 


(i)                                     an execution copy of the Participation
Agreement;


 


(ii)                                  an execution copy of the Trust Indenture;


 


(iii)                               an execution copy of the Trust Indenture
Supplement No. 1;


 


(iv)                              an execution copy of the Consent and
Agreement;


 


(v)                                 an execution copy of the Engine Consent
and Agreement;


 


(vi)                              an execution copy of the Equipment Notes
delivered today;


 


(vii)                           an execution copy of the Bills of Sale;
and


 


(viii)                        the opinion of DeBee, Gilchrist &
Lidia, special FAA counsel, dated the date hereof.


 


I have also examined such
other documents, instruments and materials as I have considered relevant in
connection with the opinions set forth herein.


 


Subject to the comments
and qualifications set forth below, I am of the opinion that:


 


1

















 


(a)                                  The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and has the corporate power and authority to enter into and perform
its obligations under the Participation Agreement, the Trust Indenture, the
Trust Indenture Supplement No. 1 and the Equipment Notes (collectively, the “Company Documents”).


 


(b)                                 The Company is a “citizen of the United
States” and holds an air carrier operating certificate issued by the Secretary
of Transportation pursuant to Chapter 447 of Title 49 of the United States Code
for aircraft capable of carrying 10 or more individuals or 6,000 pounds or more
of cargo, and such certificate is in full force and effect.


 


(c)                                  Each of the Company Documents has been
duly executed and delivered on behalf of the Company.  The execution, delivery and performance by the Company of the
Company Documents, and the consummation of the transactions contemplated
thereby, have been duly authorized by all necessary corporate action on the
part of the Company, and do not (i) contravene any law, judgment, government
rule, regulation, order, writ, injunction or decree of any court or governmental
authority applicable to the Company or binding on the Company or the
certificate of incorporation or bylaws of the Company or (ii) require
stockholder approval.


 


(d)                                 The execution, delivery and performance
by Company of the Company Documents, and the consummation of the transactions
contemplated thereby, do not violate or constitute a 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 Permitted Liens) upon
the Aircraft under, (i) the Company’s corporate charter or by-laws or
(ii) any indenture, mortgage, contract, or other agreement known to me to
which the Company is a party or by which it or its properties may be bound.


 


(e)                                  There are no pending or, to the best of
my knowledge and information, threatened actions or proceedings before any
court or administrative agency or arbitrator that question the validity of any
of the Company Documents or the Company’s ability to perform its obligations
under the Company Documents or that would have been required to be disclosed in
the Company’s Annual Report on Form 10-K filed for the year ended
                 ,
on any subsequent Quarterly Report on Form10-Q or Current Report on Form 8-K,
except such as are therein disclosed.


 


Whenever a statement
herein is qualified by “to the best of my knowledge and information” or similar
phrase, it is intended to indicate that neither I nor any lawyer employed by
the Company has current actual knowledge of the inaccuracy of such
statement.  However, except as otherwise
expressly indicted, I have not undertaken any independent investigation to
determine the accuracy of any such statement, and no inference that I have any
knowledge of any matters pertaining to such statement should be drawn.


 


The opinions set forth
herein are subject to, and are limited by, the following assumptions,
qualifications, limitations and exceptions in addition to those set forth
elsewhere herein:


 


2

















 


A.                                   I have not examined the title to the
Aircraft or the Engines and I do not express any opinion as to such title or as
to the due filing or recording of any instrument affecting title.  (Such matters are covered by the
above-referenced opinion of DeBee Gilchrist & Lidia.).


 


B.                                     This letter is given as of the date
hereof.  I have no obligation to advise
the recipients of this letter (or any third party) of changes of law or fact
that may occur after the date hereof.


 


C.                                     I am a member of the bar of the State of
New York and I do not express any opinion as to matters governed by any laws
other than the State of New York, the Federal laws of the United States of
America and the general corporate laws of the State of Delaware.


 


	
   

  	
  Very truly yours,  

  
	
   

  	
   

  
	
   

  	
  James G. Hnat

  Vice President and General Counsel

  JetBlue Airways Corporation

  



 


3

















 


SCHEDULE I


 


Wilmington
Trust Company, individually and as Mortgagee, as Subordination Agent and as
each Applicable Pass Through Trustee


 


Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity Provider


 


Morgan
Stanley Capital Services Inc., as Above-Cap Liquidity Provider


 


MBIA Insurance
Corporation, as Policy Provider


 


Moody’s
Investors Service, Inc.


 


Morgan
Stanley & Co. Incorporated, as representative for Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and
Credit Lyonnais Securities (USA) Inc.


 


Standard &
Poor’s Ratings Group


 


4

















 


EXHIBIT C


 


[FORM OF FAA COUNSEL OPINION]


 


                   ,
[2004]


 


To the Addressees on 

Schedule I Attached Hereto:


 


Re:                               JetBlue Airways Corporation;

Our File Number: 5157.0035


 


Ladies
& Gentlemen:


 


This opinion is rendered
in connection with Section 3.1.2(xiv)(C) of the Participation Agreement
[N     JB], dated as of
                                    ,
[2004] (the “Participation Agreement”),
among JETBLUE AIRWAYS CORPORATION,
a Delaware Corporation, as owner (the “Owner”),
and WILMINGTON TRUST COMPANY, a
Delaware Banking Corporation, not in its individual capacity, except as
expressly provided therein, but solely as Mortgagee (in its capacity as
mortgagee, “Mortgagee”), WILMINGTON TRUST COMPANY, not in its
individual capacity, except as expressly provided therein, but solely as Pass
Through Trustee under each of the Pass Through Trust Agreements (as such terms
are defined in the Participation Agreement), and WILMINGTON TRUST COMPANY, not in its individual capacity,
except as expressly provided therein, but solely as Subordination Agent under
the Intercreditor Agreement (as such terms are defined in the Participation
Agreement), as such Participation Agreement relates to the following-described
aircraft and engines:


 


AIRCRAFT


 


	
  Manufacturer

  	
   

  	
  Model

  	
   

  	
  Serial

  Number

  	
   

  	
  U.S. Registration

  Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Airbus

  	
   

  	
  A320-232

  	
   

  	
  [MSN]

  	
   

  	
  [N    JB]

  



 


hereafter referred to as the “Aircraft”;
and


 


ENGINES


 


	
  Manufacturer

  	
   

  	
  Model

  	
   

  	
  Serial Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  International
  Aero Engines

  	
   

  	
  [     ]

  	
   

  	
  [MSN]

  
	
  International
  Aero Engines

  	
   

  	
  [     ]

  	
   

  	
  [MSN]

  



 


hereafter
referred to as the “Engines”; this
opinion is rendered with respect to matters arising under that portion of
Section 40102 and Section 44101 through Section 44112 of Title
49, United


 


1

















 


States
Code, “Transportation” (the “Act”), relating to the recordation of
instruments and the registration of the Aircraft pursuant to the Act.


 


Except as otherwise
defined herein, terms are used in this opinion as they are defined in the Act.


 


This letter confirms that
the following described instruments (the “Instruments”)
were filed with the Federal Aviation Administration (the “FAA”) on
                     
        ,
        , at the Central Standard Times
noted below:


 


(1)                                  Aircraft Bill
of Sale (FAA AC Form 8050-2), dated
                
       ,
        (the “Bill of Sale”), between AVSA, S.A.R.L., as seller, and The
Owner, as purchaser, filed at    :   
   .m.;


 


(2)                                  Aircraft
Registration Application (FAA AC Form 8050-1), dated
                  
       ,
        (the “Application”), in the name of The Owner, filed at
   :       .m.; and


 


(3)                                  Trust Indenture
and Mortgage [N       JB], dated as of
                 
       ,        ,
between The Owner, as mortgagor, and the Mortgagee, with Trust Indenture and
Mortgage [N       JB] Supplement No. 1,
dated
                        
       ,
       , executed by The Owner, as
mortgagor, attached (herein collectively the “Mortgage”),
filed with the FAA as one instrument at
   :       
       .m.


 


PLEASE NOTE:  The Mortgage was filed with the FAA with
certain proprietary information in attachments thereto intentionally omitted
from the FAA filing counterpart thereof as containing confidential financial
information.


 


Based upon examination of
the Instruments and the records maintained by the FAA under the Act (the “Records”) as deemed necessary to render
this opinion and as were made available, the undersigned is of the opinion that
as of the time of filing noted above:


 


(a)                                  The Bill of
Sale and the Mortgage are in due form for recording pursuant to the Act and
have been duly filed for recordation with the FAA pursuant to the Act;


 


(b)                                 The Application
is in due form for filing and has been duly filed with the FAA pursuant to and
in accordance with the provisions of the Act;


 


(c)                                  The Aircraft is
presently eligible for registration with the FAA under the Act in the name of
the Owner, and the filing with the FAA of the Bill of Sale and the Application
will cause the FAA to register the Aircraft, in due course, in the name of the
Owner and to issue to the Owner a Certificate of Aircraft Registration (AC Form
8050-3) for the Aircraft pursuant to and in accordance with the provisions of
the Act;


 


2

















 


(d)                                 The Owner has
valid legal title to the Aircraft, and the Aircraft and the Engines are free of
all liens and encumbrances except those created by the Mortgage;


 


(e)                                  The filing of
the Mortgage for recordation will, upon recordation, result in a duly perfected
first priority mortgage on and a security interest in the Aircraft and the
Engines, in favor of the Mortgagee, under the terms of the Mortgage;


 


(f)                                    Except for the
recording of the Mortgage with the FAA as described herein, no further filing
or recording, including any filing or recording of the Mortgage or any other
document in any other place within the United States, is necessary in order to
create and perfect the Mortgagee’s first priority mortgage on and a security
interest in the Aircraft and the Engines, under the terms of the Mortgage, as
against any third parties under the applicable laws of any jurisdiction within
the United States; and


 


(g)                                 Neither the
execution, delivery and performance of the Instruments by the parties thereto,
nor the consummation of any of the transactions contemplated thereby, require
the consent or approval of, or the giving of notice to, or the registration of,
or the taking of any other action in respect of the FAA under the Act and the
regulations adopted thereunder, except the filings specified elsewhere in this
opinion.


 


The opinions expressed
herein are as to federal laws of the United States only.  Pursuant to Section 44108 of the Act,
the validity of any instrument, the recording of which is provided for by
Section 44107 of the Act, is subject to the laws of the State, the
District of Columbia, or the territory or possession of the United States at
which the conveyance, lease or instrument is delivered (the “Governing Laws”).  The undersigned expresses no opinions as to such Governing Laws
and assumes the Instruments and the documents in the Records are legally
sufficient under such Governing Laws to create valid and enforceable interests
of the type they purport to create and to release or terminate those interests
which they purport to release or terminate. 
No opinion is expressed as to times when the Aircraft and the Engines
are outside the United States.


 


Since the examination was
limited to the Records, the opinion does not cover liens which are perfected
without the filing of notice thereof with the FAA, such as and including, but
not limited to, federal tax liens, liens arising under Title 29, United States
Code, Section 1368(a), possessory artisans’ liens, or matters of which the
parties have actual notice.  The opinion
is subject to the accuracy of FAA personnel and contractors in the filing,
indexing and recording of the Records and in searching for cross-reference
index cards for the Engines.  The
opinion does not cover documents, if any, which may have been filed for recordation
but not listed upon the indices of Records available for examination
immediately prior to our examination for the purpose of this opinion.


 


3

















 


The opinions as to title
of the Aircraft and liens upon the Aircraft and the Engines relate only to the
time beginning with United States registration, and not to times when the
Aircraft may have been upon a foreign aircraft registry.


 


The opinion relating to
registration of the Aircraft is only as to its current eligibility for
registration and not with respect to events which may occur in the future which
may affect continued eligibility for registration.  As to matters of citizenship, the undersigned has relied upon
representations made by the Owner in the Application.  It is assumed the Aircraft is not registered under the laws of
any other country.


 


In rendering this opinion
with respect to the eligibility of the Mortgage for recordation with certain
proprietary information intentionally omitted therefrom, we have relied upon
the opinion of John A. Cassady, Deputy Chief Counsel of the FAA issued
September 16, 1994 (Federal Register/Volume 59,
Number 182/September 21, 1994).


 


The undersigned has
assumed that all documents are authentic and all signatures are genuine and
properly authorized.


 


This opinion is supplied
to and may be relied upon by the entities to whom it is addressed, solely for
the purposes described herein.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  DEBEE GILCHRIST
  & LIDIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jack P.
  Gilchrist

  



 


4

















 


SCHEDULE I

to Opinion of
                
       ,
       


 


Re:                               JetBlue Airways
Corporation;

One (1) Airbus A320-232 Aircraft, Serial

Number [MSN], U.S. Registration Number

[N       JB]; and Two (2) International Aero

Engines [       ] Engines, Serial Numbers

[MSN] and [MSN];

Our File Number: 5157.0035




ADDRESSEES


 


Wilmington
Trust Company, as mortgagee, as subordination agent and as pass through trustee


 


JetBlue
Airways Corporation


 


Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity Provider


 


Morgan
Stanley Capital Services Inc., as above-cap liquidity provider


 


MBIA
Insurance Corporation, as policy provider


 


Moody’s
Investors Service, Inc.


 


Morgan
Stanley & Co. Incorporated, as representative for Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and
Credit Lyonnais Securities (USA) Inc.


 


Standard &
Poor’s Ratings Group


 


5

















 


EXHIBIT D


 


[FORM OF WTC COUNSEL’S OPINION]


 


[date]


 


To Each of the Persons

Listed on Schedule A

Attached Hereto


 


Re:                               JetBlue Airways Financing of One Airbus
A320-232

Aircraft Bearing Manufacturer’s Serial Number [MSN]


 


Ladies
and Gentlemen:


 


We have acted as special
counsel to Wilmington Trust Company,
a Delaware banking corporation (in its individual capacity, “Wilmington Trust”), in connection with the Trust Indenture and Mortgage [NXXXJB],
dated as of [Date] (the “Trust
Indenture”), between
Wilmington Trust, not in its individual capacity, except as expressly stated
therein, but solely as Mortgagee (the “Mortgagee”), and JetBlue Airways Corporation (the “Owner”).  Pursuant to the Participation Agreement
[NXXXJB], dated as of [Date] (the “Participation
Agreement”), among JetBlue
Airways Corporation, as
Owner, and Wilmington Trust, not in its individual capacity except as expressly
provided therein, but solely as Mortgagee, Subordination Agent under the
Intercreditor Agreement, and Pass Through Trustee under each of the Pass
Through Agreements, financing is being provided for the acquisition of one
Airbus A320-232 Aircraft bearing Manufacturer’s Serial No. [MSN].  This opinion is furnished pursuant to
Section 3.1.2(xvi)(D) of the Participation Agreement.  Capitalized terms used herein and not
otherwise defined are used as defined in the Participation Agreement or, if not
defined therein, as defined in the Trust Indenture, except that reference
herein to any instrument shall mean such instrument as in effect on the date
hereof.


 


We have examined executed
counterparts, forms or copies otherwise identified to our satisfaction of the
following documents:


 


(a)                                  the Participation Agreement;


 


(b)                                 the Trust Indenture and the Trust
Indenture Supplement (the documents in paragraphs (a) and (b) above
being collectively referred to as the “Mortgagee
Documents”);


 


(c)                                  the Equipment Notes being issued today
and authenticated by the Mortgagee (the “Equipment
Notes”);


 


(d)                                 a Certificate of Good Standing for
Wilmington Trust, obtained as of a recent date from the Secretary of State of the
State of Delaware;


 


(e)                                  one or more certificates of an officer of
Wilmington Trust, dated the Delivery Date (the “Officer’s Certificate”), certifying as to the truth of its
representations and warranties set forth in the Participation Agreement; and


 


1

















 


(f)                                    one or more certificates and/or
affidavits of an officer of Wilmington Trust, dated the Delivery Date
(collectively, the “Secretary’s
Certificate”),
certifying as to, among other things, the amended charter of Wilmington Trust
attached thereto (the “Charter”), the amended bylaws of Wilmington
Trust attached thereto (the “Bylaws”), and the citizenship of Wilmington
Trust.


 


For purposes of this
letter, we have not reviewed any documents other than the documents referenced
in paragraphs (a) through (f) above. 
In particular, we have not reviewed and express no opinion as to any
other document that is referred to in, incorporated by reference into, or
attached to any of the documents reviewed by us.  The opinions in this letter relate only to the documents
specified in such opinions, and not to any exhibit, schedule, or other
attachment to, or any other document referred to in or incorporated by
reference into, any of such documents. 
We have assumed that there exists no provision in any document that we
have not reviewed that bears upon or is inconsistent with or contrary to the
opinions in this letter.  We have
conducted no factual investigation of our own, and have relied solely upon the
documents reviewed by us, the statements and information set forth in such
documents, certain statements of governmental authorities and others (as
applicable), and the additional matters recited or assumed in this letter, all
of which we assume to be true, complete, and accurate in all respects and none
of which we have independently investigated or verified.


 


Based upon and subject to
the foregoing and subject to the assumptions, exceptions, qualifications, and
limitations in this letter, it is our opinion that:


 


1.                                       Wilmington Trust has been duly
incorporated and is validly existing as a Delaware banking corporation in good
standing under the laws of the State of Delaware, and has the corporate power
and authority to execute, deliver and perform, in its individual capacity, or
as Mortgagee, Pass Through Trustee, or Subordination Agent, as the case may be,
the Mortgagee Documents, and to authenticate the Equipment Notes.  Wilmington Trust is a “citizen of the United
States” as defined in Section 40103(a)(15) of Title 49, U.S.C.,
as amended.


 


2.                                       Each of the Mortgagee Documents has been
duly authorized, executed and delivered by Wilmington Trust in its individual
capacity, or as Mortgagee, the Pass Through Trustee, or Subordination Agent, as
the case may be, and constitutes the legal, valid and binding obligation of
Wilmington Trust in its individual capacity, or as the Mortgagee, the Pass
Through Trustee or  Subordination Agent,
as the case may be, enforceable against Wilmington Trust, the Mortgagee, the
Pass Through Trustee or the Subordination Agent, as the case may be, in
accordance with its terms.


 


3.                                       The execution, delivery and performance
by Wilmington Trust, the Mortgagee, the Pass Through Trustee or the
Subordination Agent, as the case may be, of the Mortgagee Documents to which
each is a party, the authentication by the Mortgagee of the Equipment Notes and
the consummation by Wilmington Trust, the Mortgagee, the Pass Through Trustee
or the Subordination Agent, as the case may be, of any of the transactions
contemplated thereby are not in violation of the Charter or Bylaws of
Wilmington Trust or of any law, governmental rule, or regulation of the State
of Delaware or of any law, governmental rule, or regulation of the United
States of America governing the banking and trust powers of Wilmington Trust
or, to our knowledge, of any indenture, mortgage, bank credit agreement, note
or bond purchase


 


2

















 


agreement, long-term
lease, license or other agreement or instrument to which it is a party or by
which it is bound or, to our knowledge, of any judgment or order of the State
of Delaware or the United States of America relating to the banking and trust
powers of Wilmington Trust.


 


4.                                       Neither the execution and delivery by
Wilmington Trust, the Mortgagee, the Pass Through Trustee or the Subordination
Agent, as the case may be, of the Mortgagee Documents to which each is a party,
the authentication of the Equipment Notes, nor the consummation of any of the
transactions by Wilmington Trust, the Mortgagee, the Pass Through Trustee or
the Subordination Agent, as the case may be, contemplated thereby requires the
consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any governmental authority or agency
of the State of Delaware or the United States of America governing the banking
or trust powers of Wilmington Trust or under any Delaware law.


 


5.                                       There are no taxes, fees or other charges
(other than taxes payable by Wilmington Trust on or measured by any
compensation received by Wilmington Trust for its services as Mortgagee,
Subordination Agent or Pass Through Trustee) payable under the laws of the
State of Delaware or any political subdivision thereof in respect of the execution,
delivery and performance by Wilmington Trust (in its individual capacity, as
Mortgagee, Pass Through Trustee or Subordination Agent, as the case may be) of
the Mortgagee Documents and the Equipment Notes, which taxes, fees or other
charges would not have been imposed if Wilmington Trust were not a Delaware
banking corporation and did not perform its obligations as Mortgagee under the
Trust Indenture in the State of Delaware.


 


6.                                       The Equipment Notes have been duly and
validly authenticated by the Mortgagee in accordance with the Trust Indenture.


 


7.                                       To our knowledge, there are no
proceedings pending or threatened against or affecting Wilmington Trust, the
Mortgagee in any court or before any governmental authority, agency,
arbitration board or tribunal which, if adversely determined, individually or
in the aggregate, would materially and adversely affect the Mortgaged Property
or the right, power and authority of Wilmington Trust in its individual
capacity, or as Mortgagee, Pass Through Trustee, or  Subordination Agent, as the case may be, to enter into or perform
its obligations under the Mortgagee Documents or which would call into question
or challenge the validity of any of the Mortgage Documents or the
enforceability thereof.


 


The foregoing opinions are
subject to the following assumptions, exceptions and qualifications:


 


A.                                   The opinions in this letter are limited
to the laws of the State of Delaware as enacted and currently in effect and the
federal laws of the United States of America governing the banking and trust
powers of Wilmington Trust as enacted and currently in effect (other than
(i) federal securities laws, including, without limitation, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the
Trust Indenture Act of 1939, as amended, the Investment Company Act of 1940, as
amended, and rules, regulations, orders, and decisions relating thereto,
(ii) Part A of Subtitle VII of Title 49 of the United
States Code, as amended, and rules, regulations, orders, and decisions relating
thereto (except as stated in the second sentence in numbered paragraph 1
above, which opinion is based solely on the Officer’s Certificate),


 


3

















 


(iii) the Federal
Communications Act of 1934, as amended, and rules, regulations, orders, and
decisions relating thereto, (iv) the Employee Retirement Income Security
Act of 1974, as amended, and rules, regulations, orders, and decisions relating
thereto, (v) securities laws of the State of Delaware, and rules,
regulations, orders, and decisions relating thereto, (vi) laws, rules,
regulations, orders, ordinances, and decisions of any county, town,
municipality, or special political subdivision of the State of Delaware, and
(vii) laws, rules, regulations, orders, and decisions applicable to the
particular nature of the property or activities of the Trusts) and we have
considered and express no opinion on the effect of, concerning matters
involving, or otherwise with respect to any other laws of any jurisdiction, or
rules, regulations, orders, or decisions relating thereto.  Insofar as the foregoing opinions relate to
the validity and enforceability of the Transaction Documents expressed to be
governed by the laws of the State of New York, we have assumed that each such
document is legal, valid, binding and enforceable in accordance with its terms
under such laws (as to which we express no opinion).


 


B.                                     The foregoing opinions relating to
enforceability are subject to (i) bankruptcy, insolvency, moratorium,
reorganization, receivership, fraudulent conveyance, preferential transfer,
liquidation, and similar laws relating to or affecting rights and remedies of
creditors generally, (ii) principles of equity, including, without
limitation, applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law),
(iii) standards of good faith, fair dealing, course of dealing, course of
performance, materiality, and reasonableness that may be applied by a court,
considerations of public policy, and the exercise of judicial discretion, and
(iv) federal or state securities law and public policy considerations
relating to indemnification or contribution.


 


C.                                     We have assumed: (i) except as
stated in numbered paragraph 1 above, the due incorporation or due
formation, as the case may be, due organization, and valid existence in good
standing of each of the parties (other than natural persons) to the documents
reviewed by us under the laws of all relevant jurisdictions; (ii) the
legal capacity of all relevant natural persons, (iii) except as stated in
numbered paragraph 2 above, the due authorization, execution, and delivery
of each of the documents reviewed by us by each of the parties thereto; and (iv) except
as stated in numbered paragraph 1 above, that each of such parties had and
has the power and authority to execute, deliver, and perform such documents.


 


D.                                    We have assumed that (i) all
signatures (other than signatures by officers of Wilmington Trust, in its individual
capacity, or as Mortgagee, the Pass Through Trustee, or Subordination Agent, as
the case may be, on the Mortgage Documents, as the case may be, on the
Transaction Documents and the Certificates) on all documents reviewed by us are
genuine, (ii) all documents furnished to us as originals are authentic,
(iii) all documents furnished to us as copies or specimens conform to the
originals thereof, (iv) all documents furnished to us in final draft or
final or execution form conform to the final, executed originals of such
documents, (v) each document reviewed by us constitutes the entire
agreement among the parties thereto with respect to the subject matter thereof,
and (vi) except as stated in numbered paragraph 2 above, each
document reviewed by us constitutes a legal, valid and binding obligation of
each of the parties thereto, enforceable against each of such parties in
accordance with its terms.


 


E.                                      We express no opinion concerning
(i) ownership of, title to, or any similar interest in any property, (ii) creation
or attachment of any lien, pledge, mortgage, or security interest,


 


4

















 


(iii) perfection of
any lien, pledge, mortgage, or security interest, or (iv) priority of any
lien, pledge, mortgage, or security interest.


 


F.                                      For purposes of this letter, an opinion
that is limited “to our knowledge” means that, in the course of our
representation of Wilmington Trust as described above, attorneys in this firm
who have worked substantively on this letter and the transactions contemplated
by the Mortgagee Documents have not, without undertaking any investigation or
verification of the subject matter of such opinion, obtained actual knowledge
that such opinion is incorrect.


 


G.                                     The opinion set forth in paragraph 1
above concerning the citizenship of Wilmington Trust is based upon an affidavit
of Wilmington Trust, made by an authorized representative, the facts set forth
in which we have not independently verified.


 


This letter speaks only
as of the date hereof, and we assume no obligation to advise anyone of any
changes in the foregoing subsequent to the delivery of this letter.  We consent to your relying on this letter on
the date hereof in connection with the matters set forth herein.  Without our prior written consent, this
letter may not be furnished or quoted to, or relied upon by, any other person
or entity, or any governmental authority, or relied upon for any other purpose.


 


In addition, the opinions
in this letter are limited to the opinions expressly stated in numbered
paragraphs 1 through 7 of this letter, and no other opinions may be
inferred beyond such matters expressly stated.


 


Very truly yours,


 


5

















 


SCHEDULE A


 


Wilmington
Trust Company, as Mortgagee, Subordination Agent and Pass Through Trustee


 


Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity Provider


 


Morgan
Stanley Capital Services Inc., as Above-Cap Liquidity Provider


 


MBIA
Insurance Corporation, as Policy Provider


 


Moody’s
Investors Service, Inc.


 


Morgan
Stanley & Co. Incorporated, as representative for Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and
Credit Lyonnais Securities (USA) Inc.


 


Standard &
Poor’s Ratings Group


 


6

















 


EXHIBIT E


 


[FORM OF OPINION OF SPECIAL
FRENCH COUNSEL]


 


To:                              The Opinion Addressees referred to in
Schedule hereof


 


Re:                               Airbus Model A320-232 Aircraft

Manufacturer’s Serial No.        

US Registration Number NXXXJB (the “Aircraft”)


 


Dear
Sirs,


 


1.                                       We have been requested by JetBlue Airways Corporation, a Delaware
corporation (the “Company”), to
act as special French counsel with respect to, and to render this opinion
letter in connection with, certain transactions contemplated by the Participation
Agreement [NXXXJB], dated as of
           , 2004 (the “Participation Agreement”), among the
Company as Owner, Wilmington Trust Company,
a Delaware banking corporation (“WTC”),
as Mortgagee (the “Mortgagee”),
and WTC (in its capacity as Subordination Agent under the Intercreditor
Agreement) (as defined in the Participation Agreement) and Pass Through Trustee
under the Pass Through Trust Agreements (as defined in the Participation
Agreement).


 


2.                                       This opinion is being delivered pursuant
to Section 3.1.2(xv)(E) of the Participation Agreement.


 


3.                                       We have examined:


 


(a)                                  a copy of the
granting clause of a Trust Indenture and Mortgage [NXXXJB], dated as of
[              ]
(the “Trust Indenture”) made
between the Company and the Mortgagee;


 


(b)                                 a copy of a consent and agreement to (i)
the granting clause of the Trust Indenture and (ii) the Pledge Agreement dated
[              ]
(the “AVSA Consent and Agreement”) made between AVSA S.A.R.L. (“AVSA”), the
Company, and Mortgagee;


 


(c)                                  a copy of a consent and agreement to (i)
the granting clause of the Trust Indenture and (ii) the Pledge Agreement of
Airbus SNC (“Airbus”) (formerly
known as Airbus GIE) dated
[              ]
(the “Airbus Consent and Agreement”);
and


 


(d)                                 a copy of a pledge agreement entitled “Convention de Nantissement de créances”
dated as of the date hereof in the French language and its English translation
(the “Pledge Agreement”) made
between the Company (as pledgor) and the Mortgagee (as pledgee);


 


(e)                                  a Bill of Sale dated
[                     ]
executed by AVSA in favour of the Company; and


 


(f)                                    an FAA Bill of Sale dated
[              ]
executed by AVSA in favour of the Company.


 


1

















 


The documents referred to
in paragraphs (a) to (f) above are referred to herein as the “Documents”.


 


We have also examined :


 


(a)                                  a copy of the constitutive documents (statuts) of Airbus dated
[              ];


 


(b)                                 an extract (extrait K-bis) dated
[              ]
and issued by the commercial and companies registry (registre du commerce et des sociétés) of Toulouse, France,
relating to Airbus;


 


(c)                                  a certificate issued by Airbus dated
[              ]
relating to the extract (extrait K-bis)
and constitutive documents (statuts)
mentioned in (a) and (b) above;


 


(d)                                 a copy of the constitutive documents (statuts) of AVSA dated
[              ];


 


(e)                                  an extract (extrait K-bis) dated
[              ]
and issued by the commercial and companies registry (registre du commerce et des sociétés) of Toulouse, France,
relating to AVSA;


 


(f)                                    a certificate issued by AVSA dated
[              ]
relating to the extract (extrait K-bis)
and constitutive documents (statuts)
mentioned in (d) and (e) above.


 


4.                                       For the purpose of giving this opinion we
have assumed:


 


(i)                                     that the Documents
have been duly executed by the parties thereto;


 


(ii)                                  the genuineness
of all signatures;


 


(iii)                               the
completeness and conformity to the originals of all documents supplied to us as
copies or as facsimiles;


 


(iv)                              the accuracy,
at the date hereof, of the factual matters set forth in the documents listed in
items (a) to (f) of paragraph 3 above;


 


(v)                                 the Documents
expressed to be governed by New York law constitute the legal, valid and
binding obligations of the parties thereto under New York law;


 


(vi)                              The withdrawal
of (a) Airbus France SAS (b) Airbus Deutschland GmbH and (c) Airbus España S.L
as members of Airbus GIE, and the transfer of their membership to Airbus SAS
was duly completed in accordance with and is valid under French law; and


 


(vii)                           The
transformation of Airbus GIE into Airbus SNC was duly completed in accordance
with and is valid under French law.


 


5.                                       Having considered the Documents we are of
the opinion, subject to the qualifications set out in paragraph 6 below,
that:


 


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(i)                                     Airbus SNC
(formerly known as Airbus GIE) is a société
en nom collectif duly organized and existing under the laws of the
French Republic, and has the power and authority to carry on its business as
now conducted.  Airbus SAS, a société par actions simplifiée
incorporated under the laws of France, with its principal place of business at
1, Rond-Point Maurice Bellonte, 31700 Blagnac Cedex, France registered with the
Commercial and companies registry of Toulouse under n° 383474814 is the sole
present shareholder of Airbus SNC, is, without the need to proceed against any
collateral security for the indebtedness of Airbus SNC or to take any other
legal action or process (except for service on Airbus SNC, by process server “huissier” of notice to perform and
subsequent failure by Airbus SNC to do so), jointly and severally liable with
Airbus SNC for all liabilities of Airbus SNC, and jointly and severally liable
with (a) each of Airbus France SAS, Airbus Deutschland GmbH and Airbus
España S.L (each previously a member of Airbus GIE) for the debts arising out
of obligations contracted by Airbus GIE prior to the registration of its
withdrawal as member of Airbus GIE with the commercial and companies registry (registre du commerce et des sociétés) of
Toulouse, and (b) Airbus UK Limited for the debts arising out of obligations
contracted by Airbus SNC (either prior to or after its conversion from the
corporate form of groupement d’intérêt
économique) prior to the transfer of the interest of Airbus UK
Limited in Airbus SNC to the Guarantor (provided that this transfer has been
duly registered with the commercial and companies registry of Toulouse);


 


(ii)                                  AVSA is a société à responsabilité limitée duly
established and existing under the laws of the French Republic and has the
power and authority to carry on its business as now conducted;


 


(iii)                               Each of Airbus
and AVSA has full power and authority to enter into and to execute, deliver and
perform its obligations under those of the Documents to which it is a party;
such obligations are legal, valid and binding upon them, respectively, are
enforceable in accordance with their respective terms and rank pari passu with
the other unsecured obligations of Airbus or AVSA, as the case may be;


 


(iv)                              Assuming that
under New York law, the Mortgagee would be entitled to take proceedings in its
own name and on its own account to recover from the Company the full amount of
all amounts secured by the Pledge Agreement and subject to the registration and
process server (huissier)
requirements set out in paragraph 6(c) hereof and the observation set out in
paragraph 6 (e) hereof, the Pledge Agreement:


 


(a)                                  duly creates
for the benefit of the Mortgagee the security interests which the Pledge
Agreement purports to create and the Mortgagee is entitled to the benefits and
security afforded thereby; and


 


(b)                                 would be
effective as against Airbus, AVSA and third parties to perfect the pledge of
the obligations of Airbus (if any) and AVSA that are the subject of the Pledge
Agreement;


 


(v)                                 The choice of
the laws of the State of New York to govern the Documents (which are expressed
to be so governed) is valid under the laws of the French Republic and a French
court would uphold such choice of law in any suit on the Documents brought in a
French court;


 


3

















 


(vi)                              All actions,
authorizations, approvals, consents, conditions and things required at law to
be taken, fulfilled and done to authorize the execution, delivery and performance
by Airbus and AVSA of those of the Documents to which they respectively are
party have been taken, obtained, fulfilled and done; and no consents under any
exchange control laws, rules or regulations of the French Republic are
necessary in connection therewith;


 


(vii)                           Neither the
execution and delivery and performance of the Documents to which Airbus and
AVSA respectively are a party, nor the consummation of the transactions
contemplated thereby, contravenes or violates any law, judgment, governmental
rule, regulation or order applicable to or binding on Airbus or AVSA;


 


(viii)                        The transfer of
title from AVSA to the Company is exempt from French VAT provided that the
conditions set out in Article 74 of the Appendix III to the French Code Général des Impôts are satisfied and
in particular provided that (i) the Aircraft is to be exported outside the
European Union and (ii) AVSA files the export declaration (Document Administratif Unique) showing
that the Aircraft has been exported; and


 


(ix)                                Under the laws
of the French Republic, Airbus and AVSA are subject to private commercial law
and to suit, and neither Airbus nor AVSA, nor their respective properties have
any immunity from the jurisdiction of any court or any legal process (whether
through service of notice, attachment prior to notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise), except that,
with respect to Airbus:


 


(a)                                  to the extent
that Airbus occupies or possesses any property by virtue of any license or
grant from the French State, such property and the title of Airbus thereto may
be immune from suit or execution on the grounds of sovereignty; and


 


(b)                                 suit and
execution against Airbus or its property may be affected by action taken by the
French public authorities in the interests of national defense or on the
occurrence of exceptional circumstances of paramount importance to the national
interest of France, as such concept is understood under the constitution, laws
and regulations of France.


 


6.                                       This opinion must be read subject to the
following qualifications and observations as to French law:


 


(a)                                  the remedy of
specific performance may not be available in a French court;


 


(b)                                 in respect of
payment obligations, a French court has power under Article 1244-1 of the
French Code Civil to grant time
to a debtor (not in excess of two years), taking into account the position of
the debtor and the needs of the creditor;


 


(c)                                  in order to
ensure the validity as against third parties of the pledge (“nantissement”) created by the Pledge
Agreement in accordance with the provisions of Article 2075 of the French Code Civil, it is necessary for the signed
French version of the Pledge Agreement to be registered with the French tax
administration, involving payment of a stamp


 


4

















 


duty
of a nominal amount. In addition the nantissement
created by the Pledge Agreement will need to be served on each of the obligors
by process server “huissier”, in
accordance with the provisions of Article 2075 of the French Code Civil.  We have been instructed to assist in carrying out such
formalities which we intend to do upon receipt of duly executed originals of
the Pledge Agreement and we anticipate that there will be no difficulty in
accomplishing these formalities;


 


(d)                                 in the event of
any proceedings being brought in a French court in respect of a monetary
obligation expressed to be payable in a currency other than euros, a French
court would probably give judgment expressed as an order to pay, not such
currency, but its euro equivalent at the time of payment or enforcement of
judgment. With respect to a bankruptcy, insolvency, liquidation, moratorium,
reorganization, reconstruction or similar proceedings, French law may require
that all claims or debts be converted into euros at an exchange rate determined
by the court at a date related thereto, such as the date of commencement of a
winding-up;


 


(e)                                  pledges over
non-monetary claims are unusual under French law. In principle, pledges over claims
of this type should be effective against Airbus, AVSA and third parties but in
the absence of case law, there is a lack of certainty about the pledge being
effective;


 


(f)                                    a determination
or certificate as to any matter provided for in the Documents might be held by
a French court not to be final, conclusive or binding, if such determination or
certificate could be shown to have an unreasonable, incorrect or arbitrary
basis or not to have been given or made in good faith;


 


(g)                                 claims may
become barred by effluxion of time or may be or become subject to defense of
set-off or counterclaim;


 


(h)                                 a French court
may stay proceedings if concurrent proceedings are being brought elsewhere;


 


(i)                                     we express no
opinion as to whether any provision in the documents conferring a right of
set-off or similar right would be effective against a liquidator or a creditor;


 


(j)                                     the enforcement
against Airbus of any of the Documents to which it is a party may be limited by
applicable bankruptcy, insolvency, arrangement, moratorium or similar laws
relating to or affecting the enforcement of creditors’ rights generally, as
such laws are applied to Airbus.  The
enforcement against AVSA of any of the Documents to which it is a party may be limited
to such laws, as such laws are applied to AVSA.  The enforcement against Airbus SAS of any obligation of Airbus
contained in the Documents may be limited by such laws, as such laws are
applied to such shareholder;


 


(k)                                  our opinion as
to the enforceability of the Documents relates only to their enforceability in
France in circumstances where the competent French court has and accepts
jurisdiction.  The term “enforceability”
refers to the legal character of the obligations assumed by the parties under
the documents, i.e. that they are of a character which French law enforces or


 


5

















 


recognizes.  It does not mean that the Documents will be
enforced in all circumstances or in foreign jurisdictions or by or against
third parties or that any particular remedy will be available;


 


(l)                                     Article 899
of the French Code Général des Impôts
provides that agreements evidencing an undertaking to pay a sum of money are
subject to stamp duties (droits de timbre)
of a nominal amount if made in the French Republic; agreements made in a
foreign country are subject to stamp duty of a nominal amount before certain
use thereof can be made in the French Republic (Article 897 of the Code  Général
des Impôts).  Payment of such
stamp duty will not be a condition to the validity of any written undertaking,
although such payment will be necessary before any such written undertaking can
be used in any way in France, either in a public act or a declaration of any
kind or before any public or administrative body; and


 


(m)                               As a result of
Article 1844-5 of the French Code Civil,
a société en nom collectif (“SNC”) must have at least two shareholders;
if a single person holds the entire share capital of the SNC (which is the case
in the present situation, Airbus SAS being the sole shareholder of Airbus SNC)
any third party may request the relevant court that the SNC be wound up if
share(s) has (have) not been transferred to another person within one year from
the date of transfer to the sole shareholder of the shares it did not hold originally.
The court may grant the sole shareholder the opportunity to regularize the
status of the shareholding of the SNC within a further six-month period of
time.


 


We are qualified as
French Avocats.


 


No opinion is expressed
herein as to laws other than the laws of the French Republic as of the date
hereof.  This opinion is for your use
and that of no one else, and is limited to (i) the matters specifically
mentioned herein, and (ii) the purpose set out above.


 


Yours faithfully,


 


Clifford
Chance


 


6

















 


Schedule


 


Opinion Addressees


 


Wilmington
Trust Company, as Mortgagee, Subordination Agent and Pass Through Trustee


 


Landesbank
Hessen-Thüringen Girozentrale, as Primary Liquidity Provider


 


Morgan
Stanley Capital Services Inc., as Above-Cap Liquidity Provider


 


MBIA
Insurance Corporation, as Policy Provider


 


Moody’s
Investors Service, Inc.


 


Morgan
Stanley & Co. Incorporated, as representative for Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and
Credit Lyonnais Securities (USA) Inc.


 


Standard &
Poor’s Ratings Group


 


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