S-1/A

As filed with the Securities and Exchange Commission on September 16, 2014

Registration No. 333-197660

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

AMENDMENT NO. 3 TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

VIRGIN AMERICA INC.

(Exact name of registrant as specified in its charter)

Delaware	4512	20-1585173
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

555 Airport Boulevard

Burlingame, California 94010

(650) 762-7000

(Address, including zip code, and telephone number, including

area code, of registrant’s principal executive offices)

C. David Cush

President and Chief Executive Officer

Virgin America Inc.

555 Airport Boulevard, Burlingame, California 94010

(650) 762-7000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies To:

Tad J. Freese Nathan C. Salha Latham & Watkins LLP 140 Scott Drive Menlo Park, California 94025 (650) 328-4600 John J. Varley Senior Vice President and General Counsel Virgin America Inc. 555 Airport Boulevard Burlingame, California 94010 (650) 762-7000 Alan F. Denenberg Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, California 94025 (650) 752-2000

Approximate date of commencement of the proposed sale to the public:

As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ¨		Accelerated filer ¨
Non-accelerated filer x	(Do not check if a smaller reporting company)	Smaller reporting company ¨

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price (1)	Amount of Registration Fee
Common Stock, par value $0.01 per share	$ 115,000,000	$ 14,812 (2)

(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

(2) Previously paid.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

This Amendment No. 3 to Form S-1 Registration Statement (Registration No. 333-197660) of Virgin America Inc. is being filed solely to include exhibits to the Registration Statement not previously filed. Accordingly, Part I, the form of prospectus, has been omitted from this filing.

PART II

Item 13. Other Expenses of Issuance and Distribution

The following table sets forth the costs and expenses, other than underwriting discounts, payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC registration fee and the FINRA filing fee. All the expenses below will be paid by Virgin America.

Item	Amount
SEC Registration fee	$	14,812
FINRA filing fee		17,750
Initial NASDAQ listing fee		*
Legal fees and expenses		*
Accounting fees and expenses		*
Printing and engraving expenses		*
Transfer Agent and Registrar fees		*
Blue Sky fees and expenses		*
Miscellaneous fees and expenses		*
Total	$	*

* To be provided by amendment.

Item 14. Indemnification of Directors and Officers

Virgin America Inc. is a Delaware corporation. Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act of 1933, as amended. Our amended and restated certificate of incorporation to be in effect upon the completion of this offering provides for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and our amended and restated bylaws to be in effect upon the completion of this offering provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, we have entered into indemnification agreements with our directors, officers and some employees containing provisions which are in some respects broader than the specific indemnification provisions contained in the Delaware General Corporation Law. The indemnification agreements may require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. Reference is also made to Section      of the underwriting agreement to be filed as Exhibit 1.1 hereto, which provides for indemnification by the underwriters of our officers and directors against certain liabilities.

Item 15. Recent Sales of Unregistered Securities

During the last three years, the Company made sales of the following unregistered securities:

Warrant Agreements

In December 2011, the Company entered into warrant agreements with the Virgin Group and Cyrus Capital, pursuant to which it granted to the Virgin Group and Cyrus Capital warrants to purchase an aggregate of 19,250,000 shares of Virgin America common stock at an exercise price of $3.50 per share. The warrants expire in December 2041 and are only exercisable after they have been transferred in specified circumstances (provided

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that any exercise thereafter would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens), or in connection with the settlement of such warrants to an underwriter in connection with a public offering.

In November 2012, the Company entered into warrant agreements with Frederick Reid, who served as the Company’s first Chief Executive Officer until December 2007, and Joyce Reid, his spouse, pursuant to which the Company granted to them warrants to purchase an aggregate of 175,000 shares of common stock at an exercise price of $5.00 per share and warrants to purchase an aggregate of 550,000 shares of common stock at an exercise price of $10.00 per share. Half of the shares under each of these warrants vested immediately, and the other half vests upon the occurrence of a liquidity event, including a public offering, subject to certain conditions. The warrants expire on January 12, 2040 or immediately after the earlier closing of a liquidity event, including a public offering, and are exercisable only upon the occurrence of a liquidity event, including a public offering, provided that any exercise would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens.

In May 2013, in connection with the cancellation of a portion of the Company’s then outstanding related-party debt, the Company entered into warrant agreements with the Virgin Group and Cyrus Capital pursuant to which it granted (i) warrants to purchase an aggregate of 12,244,558 shares of Virgin America common stock at an exercise price of $2.50 per share to Cyrus Capital, (ii) warrants to purchase an aggregate of 155,455,440 shares of Virgin America common stock at an exercise price of $2.50 per share to the Virgin Group, and (iii) warrants to purchase an aggregate of 7,446,931 shares of Virgin America common stock at an exercise price of $0.01 per share to the Virgin Group. The warrants expire in May 2043 and are only exercisable after they have been transferred in specified circumstances (provided that any exercise thereafter would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens) or in connection with the settlement of such warrants to an underwriter in connection with a public offering.

Note Purchase Agreements

In December 2011, the Company issued $150.0 million of senior secured notes to the Virgin Group and Cyrus Capital. In May 2013, the Virgin Group transferred the notes it acquired to Cyrus Capital. The notes purchased bear interest at a rate of 17.0% per annum, of which 8.5% is payable quarterly in arrears, and 8.5% is compounded annually. The principal and accrued interest on the notes become due on June 9, 2016 if not earlier repaid or redeemed. The notes are redeemable at the Company’s option at any time and at the lenders’ option upon a change of control or certain qualified sales. The Company is also required to redeem the notes upon the incurrence of any senior debt. The notes are secured by substantially all of the Company’s assets.

In May 2013, the Company issued $75.0 million of senior secured notes to the Virgin Group and Cyrus Capital. The notes bear interest at a rate of 17.0% per annum, compounded annually. The principal and accrued interest on the notes become due on June 9, 2016 if not earlier repaid or redeemed. The notes are redeemable at the Company’s option at any time and at the lenders’ option upon a change of control or certain qualified sales. The Company is also required to redeem the notes upon the incurrence of any senior debt. The notes are secured by substantially all of the Company’s assets.

Equity Awards

Since January 1, 2011, the Company issued and sold an aggregate of 8,742 shares of common stock upon the exercise of options issued to directors, officers, employees, consultants and service providers under the Company’s 2005 Stock Incentive Plan at a weighted-average exercise price of $1.81 per share for aggregate cash consideration of approximately $15,800.

Since January 1, 2011, the Company granted options to directors, officers, employees, consultants and service providers under the 2005 Stock Incentive Plan with respect to an aggregate of 7,064,760 shares of common stock, at a weighted-average exercise price of $2.01 per share.

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Since January 1, 2011, the Company granted to its directors, officers, employees, consultants and other service providers an aggregate of 2,413,200 RSUs to be settled in shares of common stock under the Company’s 2005 Stock Incentive Plan.

Since January 1, 2011, the Company granted to its directors, including its chief executive officer, an aggregate of 3,396,432 RSUs to be settled in shares of common stock outside of the Company’s 2005 Stock Incentive Plan.

The Company’s board of directors has approved, contingent upon the consummation of the transactions contemplated by the 2014 Recapitalization, the grant to certain executive officers and other members of management of an aggregate of 1,650,000 RSUs, which will vest immediately and will be settled in shares of common stock under the Company’s 2005 Stock Incentive Plan.

Unless otherwise stated, the sales of the above securities were deemed to be exempt from registration under the Securities Act in reliance upon Sections 3(a)(9) or 4(a)(2) of the Securities Act or Regulation D or Regulation S promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. All recipients had adequate access, through their relationships with Virgin America, to information about Virgin America.

There were no underwriters employed in connection with any of the transactions set forth in Item 15.

Item 16. Exhibits and Financial Statements

See the Exhibit Index, which follows the signature pages hereto and is incorporated herein by reference.

Item 17. Undertakings

The undersigned registrant hereby undertakes that:

(1) for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;

(2) for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;

(3) for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

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(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser; and

(4) the undersigned will provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 14, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, we have duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Burlingame, State of California, on the 16th day of September, 2014.

VIRGIN AMERICA INC.
By:	/s/    Peter D. Hunt
	Peter D. Hunt
	Senior Vice President and Chief Financial Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
* C. David Cush	President and Chief Executive Officer (principal executive officer and Director)	September 16, 2014
/s/    Peter D. Hunt         Peter D. Hunt	Senior Vice President & Chief Financial Officer (principal financial and accounting officer)	September 16, 2014
* Donald J. Carty	Director and Chairman of the Board	September 16, 2014
* Samuel K. Skinner	Director and Vice Chairman of the Board	September 16, 2014
* Cyrus F. Freidheim, Jr.	Director	September 16, 2014
* Stephen C. Freidheim	Director	September 16, 2014
* Evan M. Lovell	Director	September 16, 2014
* Robert A. Nickell	Director	September 16, 2014
* John R. Rapaport	Director	September 16, 2014
* Stacy J. Smith	Director	September 16, 2014

*By:	/s/    Peter D. Hunt
	Peter D. Hunt
	Attorney-in-Fact

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EXHIBIT INDEX

Exhibit No.	Description of Exhibit
1.1*	Form of Underwriting Agreement
3.1**	Amended and Restated Certificate of Incorporation of Virgin America Inc.
3.2*	Form of Amended and Restated Certificate of Incorporation of Virgin America Inc., to be in effect upon completion of the offering
3.3**	Amended and Restated Bylaws of Virgin America Inc.
3.4*	Form of Amended and Restated Bylaws of Virgin America Inc., to be in effect upon completion of the offering
4.1*	Specimen Common Stock Certificate
5.1*	Opinion of Latham & Watkins LLP
10.1**†	General Terms Agreement No. CFM-04-0012B, dated as of June 14, 2004, between Best Air Holdings, Inc. and CFM International, Inc., as amended by Amendment No. 1, dated November 18, 2005, and as supplemented by Letter Agreement No. 1 dated June 14, 2004 (as amended by Amendment No. 1 to Letter Agreement No. 1, dated October 10, 2005, Amendment No. 2 to Letter Agreement No. 1, dated August 2, 2006, Amendment No. 3 to Letter Agreement No. 1, dated October 8, 2010 and Amendment No. 4 to Letter Agreement No. 1, dated December 29, 2010), Letter Agreement No. 2-2 dated November 1, 2013, Letter Agreement No. 4 dated November 9, 2010, Letter Agreement No. 5 dated April 18, 2011 (as amended by Amendment No. 1 to Letter Agreement No. 5, dated December 20, 2012) and Letter Agreement No. 6 dated October 3, 2011 (as amended by Amendment No. 1 to Letter Agreement No. 6, dated December 20, 2012)
10.2**†	Amended and Restated Engine Services Agreement, dated as of October 22, 2008, between Virgin America Inc. and GE Engine Services, Inc., as amended by Amendment No. 1, dated July 24, 2009, Amendment No. 2, dated November 29, 2010, Amendment No. 3, dated March 21, 2011, Amendment No. 4, dated April 18, 2011 and Amendment No. 5, dated January 8, 2013
10.3**†	Rate Per Flight Hour Agreement for Engine Shop Maintenance Services, dated as of October 1, 2011, between Virgin America Inc. and CFM International, Inc., as amended by Amendment No. 1, dated December 20, 2012
10.4**†	Signatory Agreement, dated as of November 5, 2009, between Virgin America Inc. and U.S. Bank National Association, as amended by First Amendment, effective as of July 25, 2013 and Second Amendment, dated February 3, 2014
10.5**†	Signatory Agreement, dated as of August 14, 2012 between Virgin America Inc. and Elavon Financial Services Limited
10.6**†	Signatory Agreement, dated as of June 1, 2010 between Virgin America Inc. and U.S. Bank National Association
10.7**†	Signatory Agreement, dated as of June 1, 2010 between Virgin America Inc. and Elavon Canada Company
10.8**†	Payment Processing Support Services Agreement, dated as of January 20, 2014 by and between Elavon, Inc. and Virgin America Inc.
10.9†	Terms and Conditions of Worldwide Acceptance of the American Express Card by Airlines, dated as of September 1, 2006, by and between Virgin America Inc. and American Express Travel Related Services Company, Inc.
10.10*	Registration Rights Agreement, dated as of                     , 2014, among Virgin America Inc. and certain of its stockholders
10.11†	Co-Brand Credit Card Program Agreement, dated as of May 16, 2013, by and between Virgin America Inc. and Comenity Capital Bank

Exhibit No.	Description of Exhibit
10.12**	Trade Mark License Agreement, dated as of April 9, 2007, by and among Virgin America Inc., VAL Trademark Three Limited and Virgin Enterprises Limited, as amended by Amendment No. 1 dated March 1, 2013
10.13**	Trade Mark License Agreement, dated as of November 24, 2008, by and among Virgin America Inc., Virgin Enterprises Limited, Virgin Money Investment Holdings Limited and Virgin Money Investment Group Limited
10.14**	Office Lease Agreement, dated as of December 9, 2005, between CA-Bay Park Plaza Limited Partnership and Virgin America Inc., as amended by First Amendment, dated as of July 1, 2009, Second Amendment, dated as of March 1, 2010, Third Amendment, dated as of November 5, 2010, Fourth Amendment, dated as of March 28, 2011, Fifth Amendment, dated as of January 23, 2012, Sixth Amendment, dated as of July 31, 2012 and Seventh Amendment, dated as of January 29, 2014
10.15**†	A320 Aircraft Purchase Agreement, dated as of December 29, 2010, between Airbus S.A.S. and Virgin America Inc., as amended by Amendment No. 1 dated as of March 23, 2011 (as supplemented by Letter Agreement No. 1 to Amendment No. 1, dated March 23, 2011), Amendment No. 2 dated as of September 30, 2011 (as supplemented by Letter Agreement No. 1 to Amendment No. 2, dated September 30, 2011), Amendment No. 3 dated as of December 14, 2012 (as supplemented by Letter Agreement No. 1 to Amendment No. 3, dated December 14, 2012 and Letter Agreement No. 2 to Amendment No. 3, dated December 14, 2012), Amendment No. 4 dated as of October 1, 2012 and Amendment No. 5 dated as of December 14, 2012 (as supplemented by Letter Agreement No. 1 to Amendment No. 5, dated December 14, 2012), and as supplemented by Letter Agreement No. 1 dated as of December 29, 2010, Letter Agreement No. 2 dated as of December 29, 2010, Letter Agreement No. 3 dated as of December 29, 2010, Letter Agreement No. 4 dated as of December 29, 2010, Letter Agreement No. 5A dated as of December 29, 2010, Letter Agreement No. 5B dated as of December 29, 2010, Letter Agreement No. 5C dated as of December 29, 2010, Letter Agreement No. 5D dated as of December 29, 2010, Letter Agreement No. 5E dated as of December 29, 2010, Letter Agreement No. 5F dated as of December 29, 2010, Letter Agreement No. 6 dated as of December 29, 2010, Letter Agreement No. 7 dated as of December 29, 2010, Letter Agreement No. 8 dated as of December 29, 2010, Letter Agreement No. 9 dated as of December 29, 2010, Letter Agreement No. 10 dated as of December 29, 2010
10.16**+	Amended and Restated 2005 Virgin America Inc. Stock Incentive Plan
10.17**+	Form of Stock Option Agreement under 2005 Stock Incentive Plan
10.18**+	Form of Restricted Stock Unit Agreement under 2005 Stock Incentive Plan
10.19*+	Virgin America Inc. 2014 Equity Incentive Award Plan
10.20*+	Form of Stock Option Agreement under 2014 Equity Incentive Award Plan
10.21*+	Form of Restricted Stock Agreement under 2014 Equity Incentive Award Plan
10.22*+	Form of Restricted Stock Unit Agreement under 2014 Equity Incentive Award Plan
10.23*+	Employee Stock Purchase Plan
10.24**+	Offer Letter by and between Virgin America Inc. and David Cush dated as of December 18, 2007
10.25**+	Offer Letter by and between Virgin America Inc. and Frances Fiorillo dated as of January 20, 2006
10.26**+	Offer Letter by and between Virgin America Inc. and Steve Forte dated as of March 15, 2013
10.27**+	Offer Letter by and between Virgin America Inc. and Peter Hunt dated as of May 26, 2011
10.28**+	Offer Letter by and between Virgin America Inc. and John MacLeod dated as of July 18, 2012
10.29**+	Offer Letter by and between Virgin America Inc. and John Varley dated as of June 22, 2010
10.30*+	Form of Change in Control and Severance Agreement
10.31**+	Management Incentive Compensation Plan

Exhibit No.	Description of Exhibit
10.32*	Form of Indemnification Agreement between Virgin America Inc. and its directors and executive officers
10.33**	Second Amended and Restated Note Purchase Agreement, dated as of December 9, 2011, among Virgin America Inc., Virgin Management Limited, VA Holdings (Guernsey) LP and the Bank of Utah, as collateral agent, as amended by Amendment No. 1, dated as of May 10, 2013
10.34**	Second Amended and Restated Additional Note Purchase Agreement, dated as of December 9, 2011, among Virgin America Inc., Virgin Management Limited, VA Holdings (Guernsey) LP, the Cyrus Parties (as defined therein) and the Bank of Utah, as collateral agent, as amended by Amendment No. 1, dated as of May 10, 2013
10.35**	Amended and Restated Third Note Purchase Agreement, dated as of December 9, 2011, among Virgin America Inc., Virgin Management Limited, VA Holdings (Guernsey) LP, the Cyrus Parties (as defined therein) and the Bank of Utah, as collateral agent, as amended by Amendment No. 1, dated as of May 10, 2013
10.36**	Fourth Note Purchase Agreement, dated as of December 9, 2011, among Virgin America Inc., Virgin Management Limited, the Cyrus Parties (as defined therein) and the Bank of Utah, as collateral agent, as amended by Amendment No. 1, dated as of May 10, 2013
10.37**	Fifth Note Purchase Agreement, dated as of May 10, 2013, among Virgin America Inc., Virgin Management Limited, the Cyrus Parties (as defined therein) and the Bank of Utah, as collateral agent
10.38**	Amended and Restated Second Closing Warrant Agreement, dated as of January 12, 2010, among Virgin America Inc., Carola Holdings Limited and VAI Management, LLC
10.39**	Amended and Restated Third Closing Warrant Agreement, dated as of January 12, 2010, among Virgin America Inc., Carola Holdings Limited and VAI Management, LLC
10.40**	Fifth Closing Warrant Agreement, dated as of January 12, 2010, between Virgin America Inc. and Carola Holdings Limited
10.41**	Fifth Closing Investor LLC-MBO LLC Warrant Agreement, dated as of January 12, 2010, among Virgin America Inc., Cyrus Aviation Investor, LLC and VAI MBO Investors, LLC
10.42**	Fifth Closing Investor LLC Warrant Agreement, dated as of January 12, 2010, between Virgin America Inc. and Cyrus Aviation Investor, LLC
10.43**	Form of Sixth Closing Warrant Agreement, between Virgin America and certain entities affiliated with or related to Cyrus Capital Partners, L.P.
10.44**	Form of Seventh Closing Warrant Agreement, between Virgin America and certain entities affiliated with Virgin Group Holdings Limited
10.45**	Form of Seventh Closing Warrant Agreement, between Virgin America and certain funds affiliated with or related to Cyrus Capital Partners, L.P.
14.1*	Form of Code of Business Conduct and Ethics
23.1**	Consent of Ernst & Young LLP, independent registered public accounting firm
23.2*	Consent of Latham & Watkins LLP (included in Exhibit 5.1)
24.1**	Power of Attorney

* To be filed by amendment.

** Previously filed.

+ Indicates a management contract or compensatory plan or arrangement.

† Confidential treatment has been requested for certain portions of this Exhibit pursuant to Rule 406 under the Securities Act, which portions are omitted and filed separately with the Securities and Exchange Commission.

EX-10.9

Exhibit 10.9

TERMS AND CONDITIONS FOR WORLDWIDE

ACCEPTANCE OF THE AMERICAN EXPRESS CARD BY AIRLINES

BETWEEN

VIRGIN AMERICA INC.

A DELAWARE CORPORATION

WITH ITS OFFICE AT 555 AIRPORT BLVD., 2ND FLOOR

BURLINGAME, CALIFORNIA 94010

AND

AMERICAN EXPRESS

TRAVEL RELATED SERVICES COMPANY, INC.

SEPTEMBER 1, 2006

PRINT OR TYPE EFFECTIVE DATE

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

GLOSSARY

(page numbers indicate where term is defined or first used)

“Agent”: a ticket, travel or general sales agent or other agent, not an employee of yours, who sells your Air Transport and Related Services: (p.4)

“Affiliated Companies”: means, as to any party hereto, (i) any third party which controls such party by reason of 100% ownership of voting securities of such party or (ii) any third party controlled by such party by reason of majority ownership of voting securities of the third party. (p.6)

“Air Transport”: defined in Section 1 B (p.4)

“American Express Format”: the American Express Airline Industry Submission Standard Format, as amended by us from time to time (Schedule II, p 12)

“APC”: agency processing center or other central facility for processing charges outside the U.S. (p.7)

“ARC”: Airline Reporting Corporation (p.7)

“Authorization”: defined in Schedule II, Section 4.A (p.11)

“Card Service”: the service we and our subsidiaries and affiliates provide for businesses to accept the Card for the purchase by Cardmembers of goods and services (p.7)

“Card”: Cards and other payment or account access devices bearing or marketed using the American Express name or bearing or marketed using a trademark, service mark or logo owned or marketed by American Express, its subsidiaries, affiliates or licensees or representatives of any of the foregoing worldwide (p.4)

“Cardmember”: the person whose name appears on the Card (p.4)

“Carrier”: means you, the airline signing this Agreement, your current and future subsidiary airlines and affiliate airlines (p.4). For purposes of this definition, “affiliate” means an airline that is more than 50% owned by you.

“Carrier Affiliate Group”: licensed passenger air transport carriers with which you have shared designator code agreements and written franchise or similar agreements whereby such carriers (a) operate under a trade name and logo owned by you; (b) hold themselves out to the public as being affiliated with you; (c) utilize ticket stock bearing your name and identifying number; and (d) are required to comply with operational and customer service standards prescribed by you (p.4)

“Charge”: a single purchase or series of purchases (made at substantially the same time) with the Card of one or more Air Transport tickets or other goods or services permitted by this Agreement at any location or venue of Carrier or Agent worldwide, either in person or via some other method such as telephone or internet (p.4)

“Charge Record”: defined in Schedule II, Section 3.A (p.10)

Your “Co-Brand Card”: shall mean any of your charge, credit, debit smart, stored value or other similar account payment device which bears your Mark and that may be used to purchase goods or services in more than one industry (p. 5); and

“General Purpose Card” any other charge, credit debit, smart, stored value or other similar account payment device that may be used to purchase goods or services in more than one industry (p. 5).

Co-Brand Card and General Purpose Card are defined separately and apart from one another and none of these card types shall be considered a subset or part of the other for purposes of this Agreement.

“Coupon Book”: a coupon book or pass or other similar product where the customer pays in advance for a series of goods or services to be provided in the future (p.4)

“Credit”: a refund due to a Cardmember for a Charge made, issued as described in Schedule II, Section 8 (p.13)

“Credit Record”: the method of recording Credits which has been agreed upon by you and us: defined in Schedule II, Section 8.B (p.13)

“Discount”: the percentage and/or other amount(s) applied to the amount of a Charge to calculate the deduction from that Charge as payment to us (p.5)

“Disputed Charge”: a claim, complaint or question about any Charge (Schedule II, Section 9, p.13)

“Electronic Authorization”: Authorization obtained as described in Section 4.B of Schedule II (p.11)

“Extended Payment”: any product of ours (other than the Optima Card and other revolving credit card products) which allows the user to make a purchase on an extended payment basis, whether by installments or otherwise; may be called different names in different countries: defined in Schedule II, Section 2.0 (p.10)

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

“Full Recourse”: our right in certain circumstances to reimbursement from you for payments we have made to you for a Charge as more fully defined in Section 6 (p.5)

“Marks” means names, logos, service marks, trademarks, trade names, taglines, logo or other commercial or product designations, or other proprietary designations.

“Net Annual Worldwide Volume of Charges”: the aggregate of Charges worldwide received and accepted by us from you and Agents under this Agreement during the calendar year, less Credits, adjustments, and amounts deducted pursuant to our right to Full Recourse (Schedule l,p.9)

“Other Agreement”: any agreement other than this Agreement between, on the one hand, you or one of your Affiliated Companies and, on the other hand, us or one of our Affiliated Companies (p.6)

“Prepaid Cards”: Cards marked “prepaid” or bearing such other identifier as Amex may notify Carrier (Schedule I)

“Related Services”: defined in Section 1 C (p.4)

“Speed of Pay”: the time frames for payment of Charges you submit; available plans are described in Schedule I (p.9) ‘Transmission”: the electronic submission of Charge and Credit data (p. 11 )

“we”: American Express Travel Related Services Company, Inc. Includes “us”, “our” and “ours” (p.4)

“you”: same as “Carrier”. Includes “your” and “yours” (p.4)

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

TERMS AND CONDITIONS

FOR WORLDWIDE ACCEPTANCE

OF THE AMERICAN EXPRESS^® CARD

—AIRLINES—

These terms and conditions and schedules attached hereto constitute the Agreement between you and us for acceptance of the Card.^*

1. SCOPE OF THIS AGREEMENT

A. By this Agreement, you agree to accept the Card for purchases of Air Transport and Related Services wherever and however your Air Transport and Related Services are offered worldwide.

B. “Air Transport” means

*****

C. “Related Services” mean:

*****

D. Without our written consent you may not accept the Card for (1) any good or service not listed above or (2) advance sales using Coupon Books.

^*  Some terms are defined as they appear but for quick reference see the Glossary. Other parts of this Agreement are:

• Schedule I-Discount and Speed of Pay

• Schedule II-Operational and Other Procedures

E. This Agreement covers only you, your Carrier Affiliate Group (you will give us a complete list and updates as they occur, which will become part of this Agreement) and your Agents. It does not cover any other airline or company. You are solely responsible for financial arrangements and for settling with each member of your Carrier Affiliate Group and with Agents.

(1) Carrier Affiliate Group. The obligation to accept Cards under this Agreement applies to members of your Carrier Affiliate Group. You are financially and otherwise liable to us for ensuring the compliance by each such member with all the terms and conditions of this Agreement.

(2) Agents. All Charges for your Air Transport and Related Services transacted by your Agents shall be made and submitted to Amex pursuant to this Agreement. You shall cause each Agent to (a) accept Cards under this Agreement at all worldwide locations of Agent in the same manner and on the same terms and conditions as are applicable to your acceptance of Cards under this Agreement, and (b) comply with all other provisions of this Agreement with respect to Charges.

2.*****

3. HOW TO ACCEPT THE CARD

The procedures for accepting the Card are described in Schedule II. You shall ensure that Agents and all your sales personnel interacting with customers are fully familiar with these procedures.

4. SENDING CHARGES TO US

Purchases made with the Card must be submitted to us in the country where the Charge was made (unless we agree otherwise in writing). The submission procedures are described in Schedule II.

5. PAYMENT FOR CHARGES

We will pay you for Charges prepared and submitted in accordance with this Agreement at a price equal to *****

6. FULL RECOURSE

“Full Recourse” means we are entitled to reimbursement from you for the full amount of a Charge. To recover such amounts, we have the right to offset, recoup and deduct the same from payments due to you or from your bank account (if you have an electronic pay arrangement with us), or to invoice you, in which case you agree to pay us within ***** after your receipt of our invoice. For Charges made in the United States, we will retain the Discount with regard to Charges for which we exercise our right to Full Recourse and we reserve

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

our right to establish such policy in other areas of the world. We have the right to Full Recourse in the following situations:

• failure to obtain Authorization for a Charge in accordance with Schedule II, Section 4

• splitting a Charge into two or more Charges to avoid obtaining Authorization

• failure to conform with our procedures and specifications when accepting, preparing or submitting a Charge or Credit, including, without limitation, failure to include all required information

• failure to submit to us (1) a Charge within ***** of the date the Charge was made or (2) a Credit within ***** of issuance

• if a Cardmember has a Disputed Charge as detailed in Section 9 of Schedule II

• if Cardmember disputes a Charge for which no signature was obtained on a Charge Record or where signature is only on file

• if Cardmember disputes the authenticity of his/her signature on a Charge Record and provides us with a signed statement to that effect

• the Cardmember has a right under law to withhold payment

• your failure to provide us with the original Charge or Credit Record or a copy or other information we request regarding a Charge within ***** of your receipt of our request

• receipt by us of disproportionate number of (1) Disputed Charges regarding you or (2) Charges without Authorization due to downtime of your systems, in each instance relative to your prior history “disproportionate number of Disputed Charges” means a number and/or dollar amount of Disputed Charges as a percentage of Carrier’s transactions and/or Charge volume which is excessive, based upon Amex’s previous experience with Carrier’s acceptance of the Card. Amex shall give Carrier at least thirty (30) days advance written notice and *****

• failure by you to comply with respect to a Charge with any other term or condition of this Agreement

7. COMPLIANCE WITH LAWS

As a condition of this Agreement, you represent that at all times while you provide Air Transport and Related Services, you will be:

• fully authorized and licensed by all necessary domestic and international governmental, industry and other authorities to provide Air Transport and other goods and services covered by this Agreement, and

• in compliance with all local laws and regulations (including, without limitation, those relating to currency and foreign exchange) in each state, province and country where you fly or do business

8. TERM AND TERMINATION

A. This Agreement begins as of the date specified in the signature page below and shall continue, unless terminated by either party on at least ***** prior written notice to the other party.

B. If either party materially breaches its obligations under this Agreement, and fails to cure such breach within ***** after written notice from the other party specifying such breach, then such other party may, upon written notice, terminate this Agreement. Such cure period will not relieve the breaching party of any damages caused by its breach.

9. MISCELLANEOUS

A. *****

(1) *****

(2) *****

(3) *****

(4) If there is a debit balance on your account(s) with us, you agree to pay us the balance on demand. If you fail to do so, we shall be entitled to refer your account(s) to our lawyers or collection agents for collection and to charge you a file referral fee and all associated collection costs (including but not limited to reasonable legal fees) in addition to the outstanding account balance.

(5) In addition to any rights we have under this Agreement or at law or in equity, we and our Affiliated Companies shall be entitled to retain and not pay to you any amounts we or our Affiliated Companies owe to you or at any time (regardless of the currency thereof) under any Other Agreement, unless and until you and your Affiliated Companies shall have discharged in full all your/their respective obligations and liabilities to us and our Affiliated

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Companies. You and your Affiliated Companies obligations and liabilities include but are not limited to all principal moneys, interest, fees, commissions, and any other costs and expenses, including legal costs on a full indemnity basis which we and our Affiliated Companies may incur in respect thereof (together the “Liabilities”).

(6) Without limiting any other rights we may have, you agree that we may at any time combine, consolidate or merge all or any of your and your Affiliated Companies’ account(s) and the Liabilities, and that we may set-off or transfer any sums we or our Affiliated Companies owe to you or which stand to the credit of you in or towards satisfaction of the Liabilities, notwithstanding that the sums referred to and the Liabilities may be payable in different currencies and/or in different countries. You authorize us to effect any necessary conversions at rates of exchange determined by us at the time of conversion.

B. Representation and warranty. Carrier represents and warrants that (a) it is duly qualified, registered and licensed to do business; (b) it has the full power and authority to perform its obligations and pay its debts hereunder as they become due; (c) it has and shall continue to have all the necessary assets and liquidity to perform its obligations and pay its debts hereunder as they become due; and (d) there is no circumstances threatened or pending which might have a material adverse effect on the business, assets or condition of Carrier or on its ability to perform its obligations or pay its debts hereunder.

C. Entire Agreement; Changes. This Agreement, including the Glossary, Schedules, and documents incorporated by reference, contains the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, understandings and discussions between them, whether written or oral, relating thereto. Except to the extent we have the right to immediately change this Agreement or any of the terms and conditions contained in this Agreement or schedules hereto, we will give you at least ***** prior written notice if there are any changes to this Agreement or the terms and conditions we use for the Card Service, and such changes shall will come into effect on the date we indicate and will amend this Agreement accordingly.

D. Governing Law. For all purposes, this Agreement and implementation thereof shall be governed by and construed solely in accordance with the laws of the State of New York, USA, without giving effect to the conflict of laws principles of New York or any other jurisdiction. The parties subject themselves to the exclusive jurisdiction of the courts of New York located in New York County.

E. Assignment; Ownership Change. Neither party may assign this Agreement, or any part thereof or any rights or obligations hereunder, including any right to payments from the other, without the prior written consent of such other party, except that in any country where the Card Service is provided by a subsidiary, affiliate or licensee of ours, we have the right to assign to such entity, without further notice or approval, the rights and obligations under this Agreement. We reserve the right to terminate this Agreement in the event of a merger or change of ownership or control of Carrier, and you agree to promptly notify us of any such event.

F. Authority to Sign; Acceptance of Terms. Each party represents it is legally authorized to enter into this Agreement and that the execution by the individual signing below will render this Agreement legally binding on such party. Carrier represents it is authorized to execute this Agreement on behalf of each member of the Carrier Affiliate Group and its subsidiary airlines. Irrespective of any execution of this Agreement, any Card acceptance in connection with your goods or services represents your acceptance of the terms and conditions of this Agreement, as amended from time to time.

G. Notices. Notices under this Agreement must be in writing and will be deemed given upon receipt (but conclusive evidence by the sending party of having sent a notice will rebut any claim of non-receipt by the other party) at the address each party has given the other in writing for this purpose. Notices may be sent by any commercially acceptable means, except a notice sent by fax or electronic mail will not be effective until recipient affirmatively acknowledges receipt. For a notice to us to be effective you must also send simultaneously a copy to: General Counsel, Airlines, American Express Travel Related Services Company, Inc., World Financial Center, New York, New York 10285-4910, USA. Either party may provide a different address in writing for sending or receiving Charges, Credits, payments and related correspondence.

H. Responsibility for agents and others. Each party is solely responsible for the acts and omissions of any agents, representatives, and other third parties it uses in connection with this Agreement. Members of your Affiliate Group, Agents, ARC, APCs, and processors you use will be deemed your agents or representatives, as the case may be, and not ours, and we will not be responsible for any errors, omissions, delays or losses caused by or arising from them.

I. Service/Trademarks. Neither party will use the trademarks, service marks, company names, logos or other proprietary designations of the other party without first obtaining the other party’s written consent, except that we may list you, members of your Affiliate Group and Agents when naming businesses that accept the Card.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

J. Confidentiality/Data Security. (i) The parties agree to keep confidential this Agreement and any supplements, amendments, or addenda hereto. Neither party may use or disclose any confidential or proprietary information about the other which it gains in connection with this Agreement, except as necessary to fulfill its obligations hereunder or as required by law (including information disclosed by Carrier to Amex pursuant to Section 9A.(1). You shall not use information identifying Cardmembers for any purposes other than as provided in this Agreement or compile, sell or disseminate a list of Cardmembers or information on Cardmembers.

(ii) With respect to Card transactions, except as otherwise specified, you, your processor, and any other providers of your point of sale equipment or systems or payment processing solutions (such processors and providers collectively, “Vendors”) may store Cardmember Information (“Cardmember Information” means, names, addresses, account numbers, Card Identification Numbers (“CIDs”), and any information about Cardmembers and Card transactions only to facilitate Card transactions, and no longer than is necessary for the purposes of performing your obligations under this Agreement. You and your Vendors must then destroy or purge Cardmember Information from all equipment and systems. Notwithstanding anything to the contrary herein, you and your Vendors must not store CID numbers (except temporarily until you obtain Authorization for the Charge) or the full magnetic stripe data stream on the Card. You are liable for your Vendor’s compliance with this section.

(iii) You must, and must cause your Vendors, agents, representatives, subcontractors, and any other party to whom you may provide Cardmember Information access in accordance with this Agreement to follow industry data security standards for protecting Cardmember Information including the Payment Card Industry standards (“PCI”) by the following standards: (i) installing and maintaining firewalls configured to protect Cardmember Information from unauthorized access or use; (ii) not using Vendor supplied defaults for passwords or other settings; (iii) protecting Cardmember Information through storage using triple data encryption software methods (or such standard as we may designate) and by implementing appropriate measures designed to ensure the security and confidentiality of Cardmember Information in your or their possession or control (including establishing a privacy policy explaining your security measures for protecting Cardmember Information and requiring two-person control to access encrypted Cardmember Information); (iv) encrypting transmission of Cardmember Information across the Internet or other public networks; (v) using and regularly

updating anti-virus software or programs; (vi) developing and maintaining secure equipment and systems (e.g., protecting against any anticipated threats or hazards to its security or integrity); (vii) restricting access to Cardmember Information on a need-to-know basis: (vii) assigning unique identifiers to each person with computer access to Cardmember Information: (ix) restricting physical access to Cardmember Information; (x) tracking and monitoring all access to Cardmember Information; (xi) regularly testing by a certified data security specialist of the security of equipment, systems, and processes; and (xii) maintaining information security policies for your employees and consultants. Your data security procedures for the Card shall in no event be less protective than for Other Payment Products you accept.

(iv) You must notify us immediately if you know or have reason to know that Cardmember Information is compromised. You must work with us to rectify any issues that may result, including providing us all relevant, non-confidential information to verify your ability to prevent future data compromises in a manner consistent with this Agreement. Without waiving any of our rights and remedies, you will be liable for all fraudulent transactions related to such compromise and all costs we incur as a result of such compromise if you fail to so notify us immediately. You must provide to us, on request, audit reports of your computer systems or data compromises or allow us to perform such audits.

(v) With respect to Internet Orders, in addition to the preceding requirements, you must: (i) encrypt every Internet Order using data Encryption Software (as defined in Section 12 of Schedule 1) approved by us (currently Secure Socket Layer version 3.0, 128 bit protocol, but subject to change at our discretion); (ii) not store Cardmember Information on a Web server or cache Cardmember Information anywhere in memory related to a Web server; (iii) use point of sale equipment or systems certified for the Card to transmit all Card payment information to us; (iv) use an appropriate point of sale data code to request Authorization of each Charge for Internet Orders; (v) authenticate Cardmembers’ identities before requesting Authorization of Charges; and protect Cardmember Information by following industry standards such as establishing time limits for user sessions, preventing user access to secure data (following three failed log-on attempts), establishing safeguards to prevent unauthorized access to Cardmember passwords, designating authority for resetting passwords, issuing temporary passwords, granting access to Cardmember Information only to authorized employees, creating audit trails, and monitoring or tracking access and usage.

(vi) Our Automated Address Verification and CID services are methods to help you mitigate the risk of

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

fraud, but are not guarantees that a Charge will not be subject to Full Recourse. You must participate in, and be certified under, our CID program if you wish to use that method.

This Section J. shall survive termination of the Agreement.

K. Indemnification. To the extent not prohibited by law, and excluding any consequential damages, each party agrees to indemnify and hold the other party harmless from and against any loss, claim, action, injury, liability, fine, penalty or expense (including attorneys’ costs) incurred by such party arising out of or in connection with (1) anything negligently, wrongfully or illegally done or omitted to be done by the indemnifying party, its agents or representatives (or the employees of any of the foregoing); or (2) the death or injury to any person or the loss of or damage to any property arising out of the provision by the indemnifying party or its agents or representatives (or the employees of any of the foregoing) of any service or the sale of any goods.

In the event any claim is made hereunder, Carrier and Amex agree to notify the party from whom indemnification is sought promptly and to permit that party to defend such claim by counsel of its own selection, provided that such counsel is satisfactory to and is approved by the other party.

L. Limitation of Liability. In no event will either party hereto be responsible for any incidental, indirect, consequential, special, punitive or exemplary damages of any kind arising from this Agreement. This Section L shall not apply to damages arising directly from a non-affiliated third party claim for which a party is liable under Section K (Indemnification) above.

M. Negotiation/Arbitration of Disputes. (i) In the event of a purported breach relating to this Agreement, the parties hereto shall use their commercially reasonable best efforts to settle the dispute. To this effect, they shall consult and negotiate with each other in good faith with the objective of reaching a resolution satisfactory to both parties. All offers, promises, conduct and statements, whether written or oral, made in the course of conducting the negotiations by any of the parties, their agents, employees, experts and attorneys, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration, or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. If the parties hereto do not reach such resolution within a period of ***** from first notice of the dispute (or a later date agreed to by the parties), and should the non-breaching party desire to pursue the dispute, then the dispute shall be submitted to mandatory and binding arbitration at the

election of either party as provided below. Either party may seek equitable relief in arbitration prior to arbitration on the merits to preserve the status quo pending the completion of that process.

(ii) Any controversy, dispute, disagreement, or claim arising out of or relating to this Agreement, or any alleged breach thereof, or the subject matter thereof, shall be settled exclusively by binding arbitration, as described herein, which shall be conducted in a mutually agreed upon convenient location in accordance with the provisions of this subsection (M) and the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), then in effect, applying the laws of the State of New York. A party’s request for arbitration shall be in writing, delivered to the other party, and shall set forth in reasonable detail the claims to be arbitrated, the amount involved, and the remedies sought. A panel of three arbitrators shall be designated by the AAA, each of whom shall be experienced in arbitrating commercial agreements. The decision of a majority of the panel shall be final, but may not contradict or disregard any provision hereof, including, without limitation, the provisions of subsection (L) above. The arbitration panel shall have the power and authority to grant equitable relief (e.g., injunction, specific performance), and, cumulative with all other remedies, shall grant specific performance whenever possible. The arbitration panel shall have no power or authority to relieve the parties from their agreement hereunder to arbitrate or otherwise to amend or disregard any provision of the Agreement, including without limitation the provisions of this subsection (M). All disputes shall be arbitrated individually. There shall be no right or authority for any claims to be arbitrated on a class action basis, on behalf of other parties or joined or consolidated with claims of other parties, and the parties are specifically barred from doing so. *****

(iii) Any decision rendered by the arbitration panel will include a reasoned decision and be final, conclusive, and binding upon the parties, and any judgment and remedy may be entered and enforced in any court of competent jurisdiction. This subsection (M) may be enforced any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.

(iv) This subsection (M) is not intended to, and does not, substitute for Amex’s ordinary business practices and the provisions of this Agreement regarding Disputed Charges and Full Recourse rights.

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N. Cumulative Rights; Non-Waiver. All rights and remedies of the parties are cumulative and not alternative and do not exclude or limit any rights or remedies under law or in equity. A failure or delay by either party to enforce at any time any of its rights shall not be construed as a waiver thereof.

O. Saving Clause. If any provision of this Agreement is adjudicated invalid, illegal or unenforceable (“Challenged Provision”), such adjudication shall not affect the validity, legality or enforceability of any other provision. This Agreement shall then be construed as though such Challenged Provision had never been contained herein, and the Challenged Provision will be replaced by a mutually acceptable valid provision which comes closest to the intentions of the parties underlying the Challenged Provision.

P. Survival. Each party’s rights and obligations under this Agreement with respect to a Charge or Credit will apply whether such Charge or Credit is processed by us before or after termination of this Agreement. Our rights to Full Recourse and each party’s rights and obligations under Sections D, F, J and K above shall survive termination of this Agreement.

Q. Captions. The captions and headings of the sections and subsections herein are for reference convenience only and shall not be deemed to define or modify the provisions of this Agreement.

R. Counterparts; Facsimile Signatures. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. This Agreement may be executed by signatures transmitted via telefacsimile transmissions which shall be binding on the parties hereto and be deemed original signatures hereof.

S. Each party represents and warrants to the other party that it is a sophisticated business, has negotiated individually each of the material provisions of this Agreement on an arm’s length basis with the advice of competent counsel, in order to meeting the respective needs of each party, and that no ambiguity in the drafting of this Agreement shall be construed against the drafter.

T. Effective Date. The effective date of this Agreement is September 1, 2006.

VIRGIN AMERICA, INC.

By:	/s/ Robert B. Dana
(signature)
Name Robert B. Dana
(print or type)
Title Chief Financial Officer
(print or type)

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
By:	/s/ Rocco Laterzo
(signature)
Name Rocco Laterzo
(print or type)
Title SVP & GM
(print or type)

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

SCHEDULE I

DISCOUNT, SPEED AND MODE OF PAY

1. Discount Table.

A. The Discount for Charges, other than for Prepaid Cards, shall be based on the following table. Based on your preceding calendar year’s Net Annual Worldwide Volume of Charges, we will review and make any necessary adjustments to your Discount effective as of April 1st of each year, beginning with the April 1st that follows the first full calendar year that this Agreement is in effect (in some countries we may use a different month). If your volume is above *****, a Discount reduction will apply if you use Electronic Authorization.

Discount Table

*****

B.*****

2. Speed of Pay. In countries where available you may choose from the following Speed of Pay plans (each excludes American Express non-business days).

*****

3. Mode of Pay. We will pay you electronically or, where we do not offer this service, by check. In some countries you may have to complete our local electronic pay agreement which may include fees associated with electronic pay. Currency and place of payment is as described in Schedule II, Section 6.

4. Coupon Books. *****

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SCHEDULE II

OPERATIONAL AND OTHER PROCEDURES

1. GENERAL

You agree to follow these and such other procedures relating to the Card Service as we may notify you of from time to time. In certain countries additional or different procedures may apply of which we will advise you.

2. PROCEDURES FOR CARD ACCEPTANCE

A. In-Person Charges. When the Cardmember is physically present, you will accept Cards on the condition that:

• the Card is being used within any valid dates appearing on the face of the Card

• the Card is not visibly altered or mutilated

• the Card bears the signature in the name of the person whose name appears on the face of the Card (except for those Prepaid Cards that do not show the name)

• you have not been notified by us of the cancellation or other invalidity of the Card

• Authorization for the Charge has been received

• the Charge Record is created as described in Section 3 below and is signed by the Cardmember with what appears, after reasonable inspection, to be the same signature as that written on the space for signature on the Card.

B. Other Charges. For all other Charges, such as Charges made via mail, telephone, intemet or Automated Ticketing Machines, the following conditions will apply:

• Purchases by mail or telephone shall be clearly identified as such on the Charge Record (or electronic record) and shall contain the information specified in Section 3 below. Charges transacted over the internet shall be clearly identified as such, transmitted to us under a special service establishment number for intemet Charges, contain the information specified in subsection 3 B. below and transacted in accordance with the additional procedures for Internet Orders (as defined below) under Section 12 below. Carrier shall obtain Authorization as described in Section 4 of this Schedule II, regardless of the amount of the Charge, for all tickets purchased by mail, telephone or intemet.

• If the Cardmember denies making or authorizing any such Charge, we shall have the right to Full Recourse (as defined herein) to Carrier for the amount of the Charge.

• As to Charges for purchases made by Cardmembers at Carriers automated self-ticketing machines (“ASTMs”), Authorization must be obtained for such Charges, regardless of the amount of the Charges. Requests for Authorization for Charges at ASTMs must contain full magnetic stripe data. All Charges at ASTMs shall contain the information specified in subsection 3(B) of this Schedule II, be clearly identified as having been purchased at an ASTM and be transmitted to us under a special service establishment number for ASTM Charges. If the Cardmember makes an inquiry or complaint to us that he/she did not make or authorize any such Charge, we shall have the right to Full Recourse (as defined herein) for the amount of the Charge.

C. Extended Payment. Certain of our Cardmembers who have an Extended Payment arrangement with us may request to use it when making a purchase for Air Transport (Related Services may not be purchased with Extended Payment). You will have no liability if, without your knowledge, a Cardmember incorrectly identifies himself as having Extended Payment with us. You should not ask a Cardmember if he wishes to elect Extended Payment, but if he indicates he does, record the Cardmembers election by an entry on the Charge Record and on the Transmission, if you submit electronically.

D. Future Technology. If in the future you use any ticketing or sales method not described in this Agreement, you agree to notify us in advance of implementation so that we can ensure Card acceptance and determine what changes to our terms, conditions and procedures, if any, are needed.

3. CREATING CHARGE RECORDS

A. Type of Charge Records. Whether or not you submit Charges to us electronically, you must create a record of each Charge using one of the following options (“Charge Records”):

• our standard Record of Charge form

• the current Standard Credit Card Charge form approved by the Air Traffic Conference of America, ARC, or the International Air Transport Association

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

• any other record format we approve in advance

B. Creating Charge Records. The Charge Record must clearly state:

• Cardmember’s name and passenger name (if not the Cardmember)

• Card account number and Card validity dates

• the date and the amount of the Charge approved by the Cardmember including any applicable taxes and fees

• the Authorization number, except as provided in Section 4.B below

• the ticket number and the origin and destination of each flight and class code or, if not a ticket, a description of the goods or services being purchased

• Carrier’s and, if an Agent is involved, Agent’s name and the location where Charge is being made

• Carrier’s service establishment number

• Cardmember’s signature (if an in-person Charge)

• If applicable, the election by Cardmember of Extended Payment

• such other information reasonably required by us, which may vary by country.

C. Currency of Charges. Unless we agree otherwise in writing, Charges may be made only in the currency of the country in which the sale is made and may be submitted to us only in such currency. In Appendix A to this Schedule II are the currencies in which Charges may be made and submitted. We will notify you of any changes to this list. If you begin permitting your customers to make purchases in a currency not listed in Appendix A with any other charge or credit card or payment vehicle, you agree to notify us. If we agree, you will begin submitting Charges in such currency after you and we have added the currency to Appendix A and indicated agreement by initialing it.

D. Copy to Cardmember. You must give a copy of the Charge Record to the Cardmember at the time of the Charge or send it promptly to the Cardmember if not an in-person Charge.

4. OBTAINING AUTHORIZATION

A. Authorization. You must obtain Authorization using the procedures described below for every Charge,

regardless of amount (except as provided in B below). All Authorization requests must meet the Authorization Minimum Data Standards provided by us. If we provide Authorization, we will give you a number which you must indicate on the Charge Record and on the Transmission, if you submit electronically. “Authorization” simply means you have contacted us and we consent to your proceeding to the next step of the transaction, subject to your complying with all other terms of this Agreement. It is not a guarantee of payment or that the person making the Charge is the right Cardmember, and it does not cure any failure by you to comply with any part of this Agreement or impair any right to Full Recourse we may have with respect to that Charge.

B. Electronic Authorization. Where we make it available, you must obtain Authorization electronically for every Charge using a direct or indirect authorization link between (1) your computer system or other authorization terminal or electronic point of sale device and (2) our credit authorization system. The only exception is if there is a technical access malfunction, in which case you must obtain telephone Authorization as described below for any Charge over ***** (or equivalent).

C. Telephone Authorization. Where we do not offer electronic Authorization, or during technical malfunction as described above, or where we agree otherwise in advance in writing, you must obtain Authorization for every Charge, regardless of amount, by telephoning the respective authorization center we designate around the world. Except where we have toll-free or “free” phone numbers, or where calls are required due to a “ please call” response, or “code 10” stolen card message, all such communications are at your expense, provided however, that in the United States we will charge you a fee of ***** (subject to change at Amex’s discretion) for each Authorization request by telephone, and may notify you of a similar charge which you will pay in other areas of the world.

D. Authorization for Charges on Prepaid Cards. *****

E. In-Flight Charges. Until we offer satellite or other in-flight Authorization capability, you do not need prior Authorization for in-flight Charges permitted under this Agreement. However, within 24 hours after termination of a flight on which Charges have been made, you must get Authorization as described above for each such Charge.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

F. Private Charter Charges. For Charges for private charters (where all or most of the charter is being paid with the Card) you must obtain Authorization at the time the request to pay with the Card is made and, if any such Authorization is obtained more than ***** prior to the flight, then Authorization must be obtained again within ***** prior to the flight. Charges for private charters shall not be submitted until after the return flight is completed (see 5 C below). You shall not accept Prepaid Cards for private charters.

5. SUBMITTING CHARGES

A. Charges Must be Submitted. Charges must be submitted to us (in the country where the Charges were made) and you will not invoice any Cardmember directly for any purchase made with the Card. If you receive payment from a Cardmember for a purchase made with the Card, you agree to promptly endorse and forward such payment to us. Charges from members of your Carrier Affiliate Group may be submitted to us by you or directly by such members.

B. Use of Establishment Numbers. We will assign you unique service establishment numbers which you, members of your Carrier Affiliate Group, and Agents must use as instructed by us for submissions of Charges and Credits.

C. Frequency. A Charge must be submitted to us no later than ***** after the Charge was made, provided that Charges for private charters (i.e. where the Card is being used to pay for all or most of the charter) may not be submitted until the service has been fully completed (e.g. if the Charge covers a round trip, the Charge must be submitted immediately after the completion of the return flight and not before).

D. Electronic Submission. Where we make it available, you must submit Charge and Credit data electronically (“Transmission”). Agents in the U.S. will submit via Transmission through ARC or its successor, and Agents outside the U.S. will do the same through the appropriate APC. Transmissions must:

• comply with the local American Express Format, as amended from time to time, which we will provide you

• include all information identified as “required” in such format and, if available, all information identified as “optional”. The Transmission must include any other additional information that is or may be required by applicable law or that may be mutually agreed upon

• be sent to us at such location as we designate

Note: If a Transmission is received by us on one of our non-business days or after our close of business on one of our business days, the Transmission will be deemed received on our next business day.

E. Tape and Paper Submissions. Where we do not offer electronic submission, or where we agree otherwise in advance in writing, you may submit Charges and Credits to us using magnetic tapes or on paper. Magnetic tapes must conform to the requirements of Transmissions set out in paragraph D above. Paper submissions must be batched as described in Section F below and sent to such address as we notify you, along with a Summary Form (provided by us), as often as possible, but at least weekly. In case of sales by Agents, paper submissions must be sent to such address as you instruct them or to the appropriate central processing facility (ARC in the U.S. or an APC outside the U.S.).

F. Sorting and Botching of Paper Charges. Charges submitted on paper must be sorted, batched, summarized and submitted separately to us as follows:

• Charges incurred in each currency listed in Appendix A to this Schedule II.

• Charges incurred in any other currency (we are not obliged to accept such Charges but to the extent we do it is fully at our discretion and will not create any obligation to accept such Charges in the future)

• all Charges on Extended Payment

• all Charges for Related Services

• each batch may contain no more than 150 Charge Records

• each batch must be accompanied by a Summary Form on which must be prominently indicated the gross amount and number of Charges, the currency, Carrier’s name, and your assigned service establishment number.

G. Providing Charge/Credit Records for Past Charges. Whether you submit Charges and Credits electronically or on magnetic tape or paper, you (and ARC and each APC) must retain all original Charge and Credit Records, or a copy thereof, for a period of at least ***** from the date the Charge is made or the Credit is issued. If during this period we request and do not receive the original Charge or Credit Record or a copy within ***** of your receipt of our request, we will have the right to Full Recourse for the Charge.

H. Third Party Processors. Carrier may at its own expense, use the services of a processor for the purpose of obtaining Authorizations or submitting Charges and

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Credits to us (“Processor). The Processor must meet our qualifications and requirements, and must either (i) enter into an “Authorized Processor Agreement” with us; or (ii) must be an approved processing agent who obtains American Express Card services through an authorized Processor. Carrier understands and agrees that if it utilizes the services of a Processor or processing agent, the Processor and/or processing agent, and not us, shall be responsible for any errors, omissions, delays or losses in the implementation and performance of Authorization or submission or Transmission services, and that any fees charged by the Processor to us are the responsibility of Carrier.

I. Validity of Charges. By submitting a Charge to us you represent and warrant that (1) it is only for a carrier permitted to participate in the Card Service under this Agreement, (2) it is the result of a bona fide sale of goods or services to a Cardmember, (3) the amount shown on the Charge Record represents the true value of the goods or services approved by such Cardmember, and (4) it is being sent to us free and clear of any liens, pledges, claims and encumbrances. Without limiting our rights or claims with respect to the materiality of any other breach, any breach of this provision constitutes a material breach of this Agreement.

6. PAYING YOU FOR CHARGES

A. Mode of Pay. We will pay you electronically or, where we do not offer this service, by check. Where payment is made by check, in selected countries you may be required to collect your check at a designated Amex location.

B. Location and Frequency. We will pay you for Charges in the country in which you submit such Charges at such local bank account or address as you instruct us in writing in accordance with the Speed of Pay applicable to you there.

C. Currency of Payment. We will pay you for Charges in the currency in which the Charges were submitted to us, or at our discretion in U.S. dollars.

D. Currency Conversions. Currency conversions we make will be as of the date we process the item in question or at such other date as we may notify you. Unless required otherwise by law, we will use an exchange rate based on quotes we receive from major financial institutions.

7. RECONCILING SUBMISSIONS

If our reconciliation of your submissions identifies an error (e.g. incorrect calculations, inclusion of another company’s charge records, etc.), the following procedures will be followed:

• the adjustments will be calculated in the currency in which the Charges were submitted

• if monies are due you, we will add the amount to subsequent payments due to you

• if monies are due to us, we will deduct the amount due from your bank account (if you have an electronic pay arrangement with us) or from payments due to you, or we will invoice you for it; if you request, we will provide you with substantiating documentation

8. REFUNDING CARDMEMBERS: CREDITS

A. Creating Credit Records. Whether or not you submit Credits electronically, you must create a record of each Credit using a credit record agreed upon by you and us (“Credit Record”), a copy of which you will give or send to the Cardmember at the time of refund. Credits must be prepared in the currency in which the original Charge was submitted to us, and Credits shall be made to the same Card account used to make the initial purchase (except if the initial purchase was made with a Prepaid Card that is no longer available).

B. Submitting Credits. A Credit must be submitted to us promptly but no later than ***** after the Credit is issued. Credits must be sent via Transmission except where we do not offer electronic submission in which case you may send Credits by magnetic tape or paper. Credit Records sent on paper must be batched by currency and submitted with a separate Summary of Credits.

C. Processing of Credits by Us. Upon receipt of a Credit we will deduct an amount equal to such Credit, minus the applicable Discount, from your bank account (if you have an electronic pay arrangement with us) or from payments due to you, or we will invoice you for it.

D. Conversions by You. You must obtain our prior written consent to perform currency conversions for any Charge. Any Credit issued with regard to such Charge must be converted at the same exchange rate used for the Charge.

9. DISPUTED CHARGES

A. Responding to Inquiries. We will have the right to Full Recourse for a Disputed Charge without first contacting you if we determine that we have sufficient information to resolve the Disputed Charge in favor of the Cardmember. There may be circumstances under which we contact you prior to exercising our right to Full Recourse for a Disputed Charge.

If you wish to demonstrate that a Disputed Charge should not have been, or (if we have not already

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

exercised our right to Full Recourse and instead contacted you) should not be, resolved in favor of the Cardmember, you must provide us with a written response which includes such information as we require. Your written response must be received by us within ***** of our notice to you of Full Recourse or other contact regarding the Disputed Charge (or shorter time period in particular countries upon notice to you). If you do not respond to our notification of Full Recourse or contact or do not provide the required information within such ***** (or shorter) timeframe, our original exercise of Full Recourse will remain in effect, or (if we have not already exercised our right to Full Recourse), we shall have the right to exercise our right to Full Recourse for failure to meet such timeframe. If you respond within the ***** (or shorter) timeframe, we will make a final determination, based on the information you provide, and the information provided by the Cardmember, whether the Disputed Charge should have been, or should be, resolved in favor of the Cardmember. If we determine that the Disputed Charge should have been, or should be, resolved in favor of the Cardmember, our original exercise of Full Recourse rights will remain in effect or we shall have the right to exercise those rights. If we previously exercised our right to Full Recourse and resolve the Disputed Charge in your favor, we shall re-credit you for the amount we previously deducted or invoiced pursuant to the exercise of our right to Full Recourse.

In any case where we exercise our right to Full Recourse, we shall do so by deducting the amount of the Disputed Charge from payments to you or, if we are unable to do so, by invoicing you for such amount, which invoice you will pay in full upon receipt of our invoice.

B. Disproportionate Disputed Charges. In addition, if we are receiving a disproportionate number of Disputed Charges or Charges without Authorization due to downtime of your systems, we will have the right to Full Recourse with respect to all such Charges irrespective of the time periods specified above, and we may withhold additional amounts from payments due you as reserve to protect against future Disputed Charges.

C. Delayed Disputed Charges. Our usual policy is not to contact you or exercise Full Recourse for Disputed Charges where the Cardmember’s dispute first arises more than 12 months after the Charge was posted to the Cardmember’s account, unless we believe such Disputed Charge may involve any fraud or intentional wrongdoing on your part or unless you agree to accept our inquiry or exercise of Full Recourse. We reserve the right to change this policy at any time with respect to you if we experience unacceptable losses or customer dissatisfaction. For the avoidance of doubt, the above deadline will not apply where efforts to investigate or otherwise find a solution to a Disputed Charge began prior to such 12 month period.

10. CHARGEBACKS

A. Currency. When we exercise the right to Full Recourse (see Section 6 of main part of this Agreement), the amount charged back to you will be calculated in the currency in which the Charge was submitted.

B. Cardmember Collections. If you decide to pursue collection from a Cardmember of any Charge for which we exercised Full Recourse, you agree to do so only if permitted by applicable law and only if the Cardmember had authorized the Charge. If you request, we will provide you such reasonable information or documentation relevant to the Disputed Charge as permitted by our company policies and applicable law.

11. ASSISTANCE RECOVERING CARDS

If we request your help recovering or destroying an invalid Card, you agree to do so using reasonable and appropriate steps consistent with our instructions. You may be eligible for a reward if we offer one in the country in question.

12. SPECIAL TERMS FOR ACCEPTANCE ON THE INTERNET

You shall accept the card for purchases made through electronic mail order via the internet (internet orders) including online services, the worldwide web and other similar services subject to the following additional terms and conditions:

1. Every internet order will be encrypted by you using encryption software (as defined below) authorized by American Express, prior to your acceptance of an internet order from a cardmember. In addition, you shall conform with our security guidelines as set forth in section 9 j. Above or as may be communicated to you from time to time.

2. You shall not transmit or solicit transmission to you of card account numbers or any other card related data through the internet or any other electronic mail medium unless such data has been encrypted with encryption software before transmission and is transmitted either from the cardmember to you or from you to us or to our authorized processor.

3. You must not store on your database the CID (4 character card identification code) or the address verification code, as it must be supplied by the consumer for each transaction.

4. *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

5. You shall conform with any additional requirements we may have from time to time for internet orders. We agree to provide you with no less than one month’s prior notice in writing of any such requirements except where we notify you that immediate introduction is necessary for reasons of security of internet orders and/or cardmember data.

6. You agree to provide us with one month’s advance written notice of any change in your internet address.

7. You agree to utilize a separate American Express service establishment number for all internet orders

From time to time American Express shall determine the software it authorizes to be used by Establishments for encryption (,Encryption Software’). Currently the Encryption Software authorized by American Express is the Secure Socket Layer (SSL 3.0 128 bit) protocol.

Notwithstanding your compliance with the above special terms, we have the right to Full Recourse if a Card member does not pay for a Charge for an Internet Order.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

APPENDIX A TO SCHEDULE II

CURRENCIES IN WHICH CHARGES MAY BE MADE

AND SUBMITTED^*

Current List		Additional by Mutual Agreement (must be initialed by both parties)
		Currency	Carrier Date	Amex Initials	Initials
Algerian Dinars	Kuwaiti Dinars
Argentine Pesos*	Lebanon Pounds
Australian Dollars	Macau Pataca
Bahamian Dollars	Malaysian Ringgits
Bahrain Dinars	Maltese Pounds
Bangladesh Takas	Mexican Pesos*
Benin CFA	Moroccan Dirhams
Bermudian Dollars	Netherlands Antilles
Bolivian Pesos	Guilder/Florin
Brazilian Reals*	New Taiwan Dollars
British Pounds Sterling	New Zealand Dollars
Brunei Dollars	Nicaraguan Cordoba
Bulgaria Levas	Nigerian Dinars
Canadian Dollars	Norwegian Kroner
Cayman Island Dollars	Omani Riya
Chilean Pesos	Pakastani Rupee
China Renminbis	Panamanian Balboa
Colombian Pesos	Parquayon Guarini
Costa Rican Colon	Peruvian Sol
Croatia Kuna	Philippine Pesos
Cyprus Pounds	Polish Zlotys
Danish Kroner	Quatar Riyals
Djibouti Francs	Russian Rouble
Dominican Pesos	Saudi Arabian Riyals
Eastern Caribbean	Singapore Dollars
Dollars
Ecuadorian Sucre	South African Rand
Egyptian Pounds	Swedish Kroner
El Salvador Colon	Swiss Francs
Ethiopian Birrs	Syrian Pounds
Euro	Tanzanian Shillings
Fijian Dollars	Thai Baht
Guatemalan Questzal	Tobago Dollars
Guyanese Dollars	Trinidad Dollars
Honduras Lampira	Tunisian Dinar
Hong Kong Dollars	Turkish Lira
Indian Rupees	Ugandan Shillings
Indonesian Rupiah	UAE Dirahms
Israel New Shekl	U.S. Dollars
Japanese Yen	Venezuelan Bolivars*
Kenyan Shillings	Vietnam Dongs
Korean Won	Yemeni Rials

^*  A Discount Table, Speed of Pay and mode of pay plans different from those set forth in Schedule I may apply in certain countries at certain times. Currently these are Argentina, Brazil, Mexico, and Venezuela but we reserve the right to modify this list. In addition, we reserve the right, with notice to you, to increase the Discount, lengthen the Speed of Pay, or cease electronic pay in any particular country where we are required to do so by local law/regulation or where we determine there is unusual inflationary, political, foreign exchange or other risks beyond our control.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

EX-10.11

Exhibit 10.11

CO-BRAND CREDIT CARD PROGRAM AGREEMENT

BETWEEN

COMENITY CAPITAL BANK

AND

VIRGIN AMERICA INC.

DATED AS OF MAY 16, 2013

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

TABLE OF CONTENTS

SECTION 1. PROGRAM SUMMARY AND DEFINITIONS
1.1	Program Summary
1.2	Definitions and Other Obligations
SECTION 2. ESTABLISHMENT OF THE PROGRAM
2.1	Establishment of the Program; Applications for Credit
2.2	Internet Features
2.3	Operating Procedures
2.4	Program Documents (Forms and Collateral)
2.5	Marketing and Promotion of Program
2.6	Ownership of Accounts and Information
2.7	Protection Programs and Enhancement Marketing Services
2.8	Ownership and Licensing of the Party’s Marks
2.9	Elevate Rewards Program
2.10	Program Value Proposition
2.11	Card Network Selection
2.12	Network Products
SECTION 3. OPERATION OF THE PROGRAM
3.1	Processing Through Card Network
3.2	Ownership of Accounts; Fees; Accounting
3.3	Bank Mailings; Insertion of Virgin’s Promotional Materials
3.4	Payments
3.5	*****
3.6	Reports
3.7	*****
3.8	Purchase, Reporting and Posting of Elevate Points
3.9	Program Economics
3.10	Implementation
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1	Organization, Power and Qualification
4.2	Authorization, Validity and Non-Contravention
4.3	Compliance with Law
4.4	Intellectual Property Rights
4.5	Virgin Marks
SECTION 5. COVENANTS
5.1	Notices of Changes
5.2	Financial Statements
5.3	Access Rights
5.4	Each Party’s Business
5.5	Insurance
5.6	Compliance with Agreement and Applicable Law
SECTION 6. INDEMNIFICATION
6.1	Indemnification Obligations
6.2	LIMITATION ON LIABILITY
6.3	NO WARRANTIES
6.4	Notification of Indemnification; Conduct of Defense

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

SECTION 7. TERM, EXPIRATION AND TERMINATION
7.1	Term and Expiration
7.2	Termination with Cause by Bank; Bank Termination Events
7.3	Termination with Cause by Virgin; Virgin Termination Events
7.4	Purchase of Accounts
7.5	Effect of Termination
SECTION 8. MISCELLANEOUS
8.1	Entire Agreement; Amendment; No Waiver; Severability; Counterparts; Captions and Cross References; Mutual Drafting
8.2	Coordination of Public Statements
8.3	Successors and Assigns
8.4	Notices
8.5	GOVERNING LAW / WAIVER OF JURY TRIAL
8.6	Force Majeure
8.7	Survival
8.8	Relationship of Parties; Third Parties; Independent Contractor
8.9	Confidentiality and Security Control
8.10	Taxes
SCHEDULES
1.2	Definitions and Other Obligations
1.2(a)	Bank Marks
1.2(b)	Virgin Marks
2.1 (f)	EV Process
2.1 (g)	Approval Rates
2.1 (i)	Operating Committee
2.1 (h)	Service Standards
2.4 (a)	Virgin Marks on Cardholder Materials
2.4(d)(ii)	Bank Standard Specifications for Forms
2.5(a)	Marketing Promotions
2.5(b)	Marketing Funds
2.6	Monthly Master File Information
2.6(c)(i)	Securitization of Accounts
2.9(a)	Elevate Rewards Program
2.10	Program Value Proposition
3.2(b)	Summary of Rates and Fees
3.6	Bank Reports
3.9	Payment Obligations
7.1	Term and Expiration
7.4	Purchase of Accounts

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

CO-BRAND CREDIT CARD PROGRAM AGREEMENT

THIS CO-BRAND CREDIT CARD PROGRAM AGREEMENT (together with any schedules, exhibits, addenda, and future amendments and supplements hereto, this “Agreement”) is made as of the 16th day of May, 2013 (the “Effective Date”), by and between VIRGIN AMERICA INC., a Delaware corporation, with its principal office at 555 Airport Boulevard, Burlingame, CA 94402 (hereinafter referred to as “Virgin”), and COMENITY CAPITAL BANK, with its principal office at 2795 E. Cottonwood Parkway, Suite #100, Salt Lake City, UT 84121 (hereinafter referred to as “Bank”).

WITNESSETH:

WHEREAS, Virgin is the owner of a loyalty program (the “Elevate Rewards Program”) under which Members are awarded Elevate Points, which Elevate Points are eligible for redemption by Members for travel on Virgin’s airline and for other Virgin products and services in accordance with the terms and conditions of the Elevate Rewards Program; and

WHEREAS, Virgin has requested Bank to extend credit to qualifying Members in the form of co-brand credit card accounts and to issue Credit Cards to such Members (as such capitalized terms are defined below); and

WHEREAS, Bank is a member of various Card Networks and is an issuer of general purpose credit cards throughout the United States; and

WHEREAS, Bank shall own and service all the Accounts as more fully set forth herein; and

NOW THEREFORE, in consideration of the terms and conditions hereof, and for other good and valuable consideration, the receipt of which is hereby mutually acknowledged by the parties, Virgin and Bank agree as follows.

SECTION 1 PROGRAM SUMMARY AND DEFINITIONS

1.1 Program Summary. For the benefit of both parties hereto, Virgin and Bank have agreed to collaboratively launch, promote and maintain the Program, to be offered to customers, prospective customers, and employees of Virgin in the United States. The parties’ intent is that they will work in collaboration (emphasizing communication and good faith efforts) to maximize the value of the Program for their mutual benefit. To that end, the parties agree that, although the provisions of this Section 1.1 do not supersede either party’s rights and obligations as set forth elsewhere in this Agreement, it is the intent of each party that its respective performance under this Agreement shall be guided by the following objectives:

• Generate new Accounts and improve Net Sales

• Develop and cultivate Member relationships and build loyalty

• Improve overall profitability for Virgin

In order to achieve the Program objectives, an extraordinary amount of cooperation and communication between the parties is essential. Accordingly, the parties shall establish an Operating Committee as set forth in Section 2.1 (i). Through such Operating Committee, the parties shall work together in good faith to review, discuss and address any particular concerns that either such party has with regard to the general performance of the overall portfolio, as well as any matters which either party believes to be material with respect to the ongoing administration of the Program.

1.2 Definitions and Other Obligations. See Schedule 1.2.

SECTION 2 ESTABLISHMENT OF THE PROGRAM

2.1 Establishment of the Program; Applications for Credit.

(a) The Program is established for the primary purposes of providing Member financing for purchasing goods and/or services, promoting and enhancing the benefits associated with the Elevate Rewards Program, and providing Bank and Virgin a commercially reasonable financial return.

(b) Virgin and Bank shall use reasonable efforts to commence the Program on January 1, 2014, or such earlier date as the parties mutually agree upon in writing.

(c) Applicants who wish to apply for an Account under the Program must submit a completed application on a form or in an electronic format approved by Bank, and Bank shall grant or deny the request for credit based upon Bank’s credit criteria. The decision to extend credit to any Applicant under the Program shall be solely Bank’s decision.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

(d) When facilitating any Application Procedure, Virgin shall follow all applicable Operating Procedures and maintain the confidentiality of all Applicant data pursuant to Section 8.9. Depending on the Application Procedure utilized, the application shall be submitted to Bank by the Applicant or submitted by Virgin on behalf of the Applicant, as required in the Operating Procedures.

(e) The initial Application Procedures for the Program shall be direct mail, instant credit, real time prescreen, batch prescreen, take ones, and web/mobile. At any time during the Term the parties may mutually agree to utilize Bank’s other Application Procedures. Bank acknowledges that real time prescreen may not be the optimal method for acquiring Accounts and that it is possible that full application methodologies may be more effective with certain segments and channels and agrees to test application methodologies mutually agreed by the parties to determine the methodologies that maximize program acquisition and spending metrics, such metrics to be mutually agreed upon by the parties.

(f) Qualified Applicants desiring to use the Program shall be granted an Account and issued the applicable Credit Card product for which they qualify by Bank with a credit line in an amount to be determined by Bank in its discretion, but no less favorable than the standard lines assigned for other similar Bank cobrand programs. Bank shall determine the terms and conditions of the Account to be contained in a Credit Card Agreement. To the extent any Applicant that is granted an Account is not already a Member, Bank will provide Virgin with such Applicant’s name, address, and e-mail and Virgin will enroll such Applicant into the Elevate Rewards Program. Bank will ***** the Credit Card mailed to the Cardholder, subject to Virgin providing the applicable ***** information to Bank during the application process. As a point of clarity, Bank shall not issue a Credit Card until Virgin either confirms that the Member number provided by the Member is accurate or provides a new Member number in the event that the Applicant is not currently a Member. Bank and Virgin shall cooperate to develop a process that effects the foregoing in a manner that complies with Applicable Law and with the objective of not delaying the Bank’s opening of an Account by more than ***** (“EV Process”). The agreed upon EV Process is portrayed in Schedule 2.1(f). Any delays due to the EV Process shall be excluded for the purpose of measuring the applicable Service Standards.

(g) Bank shall perform all functions necessary to administer and service the Accounts, including but not limited to: establishing and administering the underwriting and credit decisions for the Program; making all necessary credit investigations; notifying Applicants in writing of acceptance or rejection of credit under the Program; preparing and mailing billing statements; making collections; funding receivables; handling Cardholder inquiries managing billing issues, merchant inquiries and fraud control; and processing payments. See also Schedule 2.1 (g) with respect to Bank’s credit decisions.

(h) Bank shall perform in accordance with the Service Standards set forth in Schedule 2.1 (h). Bank will provide Virgin with a monthly summary of Bank’s performance regarding the Service Standards.

(i) The parties shall establish an Operating Committee to review and discuss (i) marketing efforts and Marketing Fund usage; (ii) the general performance of the Program; and (iii) any matters which either party believes to be material with respect to the ongoing administration and/or operation of the Program. The Operating Committee shall include participation at the management level from both parties. Additional details of the Operating Committee are set forth in Schedule 2.1 (i).

2.2 Internet Features. Bank shall establish an Account Center for the Program, and Virgin shall provide a weblink to the Account Center. In the event Bank changes or otherwise modifies the website address for its designated website, Virgin will either update or modify its link thereto, as directed by Bank subject to commercial reasonableness.

2.3 Operating Procedures. Virgin shall observe and comply with the Operating Procedures on not less than ***** prior notice to Virgin or otherwise required by Applicable Law or applicable Card Network rules and regulations. The Operating Procedures may be amended or modified by Bank from time to time in its reasonable discretion; provided, however, unless such changes are required by Applicable Law, a copy of any such amendment or modification shall be provided to Virgin at least ***** before its effective date, and for those changes required by Applicable Law or Card Network rules and regulations, if applicable, notice shall be given *****. The parties will work together in good faith to establish, maintain, amend and improve the procedures needed to carry out the agreed operational tasks for the Program.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

2.4 Program Documents (Forms and Collateral). (a) Forms - General. Subject to (b) below, Bank shall design, determine the terms and conditions of, and generate the form of the Credit Card Agreement, applications, Credit Card, card mailers, PIN mailers, privacy notices, billing statements (including backers), Cardholder letters, templates, and other documents and forms to be used under the Program which (i) relate to the Program, (ii) relate to Bank’s and/or the Cardholder’s obligations, (iii) are used by Bank in maintaining and servicing the Accounts; or (iv) are required by Applicable Law (collectively, “Forms”). All Forms shall be in the English language only unless otherwise agreed by the parties in writing, and there shall be only one design for each Form. Notwithstanding the above, Bank and Virgin shall jointly design any Member marketing aspects of billing statements, Credit Cards, and card mailers and Bank shall endeavor to integrate Virgin branding elements on the foregoing Forms when possible and appropriate and if requested by Virgin at no cost to Virgin (subject to costs relating to deviations from Bank’s standard specifications for such Forms as provided in 2.4(d)(ii) below). For the avoidance of doubt, Bank shall use the Virgin Marks on Forms and Cardholder communications in a manner consistent with the guidelines set forth in Schedule 2.4(a).

(b) Collateral. Virgin may design and produce promotional material, direct mail pieces, catalog, newspaper, radio and electronic advertisements, and other collateral documents (collectively, “Collateral”) which reference the Program. Virgin shall submit all Collateral to Bank for its review and approval solely of the Program disclosures, as well as references to the Program and use of Bank Marks. Pursuant to this review and approval process, Virgin will make (or have made) all changes that Bank requests to satisfy Applicable Law and/or in exercising its rights regarding Bank Marks under this Agreement.

(c) Bank’s Costs. Subject to subsection (d) below, Bank will determine which and how many of the following to provide, which shall be at its expense. First, Bank will provide to Virgin at one central location, for distribution to Members and Cardholders, marketing purposes, and mass mailings, as applicable: (i) adequate copies of Credit Card Agreements and applications; and (ii) the template of any appropriate Forms. Second, Bank shall provide an appropriate number of (or copies of, as applicable) Credit Card Agreements, applications, Credit Cards, billing statements, and card mailers.

(d) Virgin’s Costs. (i) Virgin Re-issuances and Upgrades. Virgin shall pay any and all direct costs (including but not limited to embossing and encoding plastics, Forms, Collateral and postage) related to any re-issuance of Credit Cards to Cardholders that Virgin requests or that is necessitated solely by Virgin’s decisions and/or actions, including any re-issuance due to a change in Card Network pursuant to Section 2.11 (collectively “Virgin Re-issuances”). Bank will charge Virgin no more than ***** per Account for costs resulting from Virgin’s request to change the Card Network pursuant to Section 2.11.

(ii) Variations from Bank’s Standards. If a request or requirement (as applicable) of Virgin with regard to any Program Documents requires a variation from Bank’s standard specifications, and such variation causes an increase in any cost of Bank, Virgin shall bear the additional expense. In the event any Forms become obsolete as a result of changes requested by Virgin or necessitated solely by its decisions and/or actions, Virgin shall reimburse Bank for the costs associated with any unused obsolete Forms. The Bank’s standard specifications for Forms are outlined in Schedule 2.4(d)(ii) of this Agreement. For the sake of clarity, Bank shall customize the appropriate Program materials with Virgin Marks and such customization shall not be considered a variation from Bank’s standard specifications.

2.5 Marketing and Promotion of Program. (a) Throughout the Term of this Agreement, Virgin and Bank shall actively and consistently market, promote, participate in and support the Program, including without limitation those marketing promotions set forth in Schedule 2.5 (a) and such other methods mutually agreed upon by Virgin and Bank. Virgin and Bank will jointly agree upon programs to market the Program, both initially and on a continuing basis.

(b) Bank shall contribute the amounts set forth in Schedule 2.5 (b) to apply to mutually agreed upon marketing and promotion expenses associated with the Program, such agreement not to be unreasonably withheld. All of such funds shall be referred to herein as the “Marketing Fund.” Virgin shall pay all marketing and promotion expenses directly as they are incurred by Virgin, and shall send Bank an invoice for the aggregate amount of the expenditures mutually agreed upon by the parties, together with supporting documentation reasonably satisfactory to Bank for such expenses. Bank shall then reimburse Virgin. For marketing and promotion expenses mutually agreed by the parties and incurred by Bank, Bank shall send Virgin documentation reasonably satisfactory to Virgin for such expenses and Bank shall deduct such amounts from the Marketing Fund. Bank shall have the right to cease the availability of the Marketing Funds contributed by Bank for any

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future marketing or promotions if either party: (i) terminates this Agreement, (ii) notifies the other party of an intent to terminate or the fact that the notifying party has already terminated this Agreement, or (iii) notifies the other of an intent to allow this Agreement to expire. If the Marketing Funds are not used in the Program Year they are contributed, they will roll over and shall be used within the first ***** of the next Program Year.

2.6 Ownership of Accounts and Information. (a) Virgin and Bank recognize that Cardholders are Members, and that each party has certain ownership rights in information relating to such individuals in their respective roles as Cardholders and Members. The parties acknowledge that the same or similar information may be contained in the Bank Cardholder Information (defined below) and Virgin Member Information (defined below); such common information being referred to herein as “Common Information”. Each such pool of data shall therefore be considered separate information subject to the specific provisions applicable to that data hereunder.

(b) The Members’ names and addresses and other Member information collected by Virgin independent of Bank and set forth in Virgin’s records shall be the exclusive property of Virgin; such information and Virgin’s Common Information shall be referred to collectively as “Virgin Member Information”. Prior to the Program Commencement Date, Virgin shall provide to Bank no less than ***** marketable Member names and addresses, as well as e-mail addresses, which e-mail addresses will only be used by Bank in connection with marketing initiatives approved by the Operating Committee. Additionally, as requested by Bank and in any event, no less than *****, Virgin shall provide the names, addresses, telephone numbers and e-mail addresses of new marketable Members to Bank, to be used only for purposes of (i) evaluating such Member’s creditworthiness, (ii) soliciting such Members for Credit Cards, (iii) administering the Program in accordance with the terms of this Agreement and Applicable Law. Bank shall protect the confidentiality of such information as set forth in Section 8.9.

(c) (i) Subject to Virgin’s rights pursuant to Schedule 7.4, Bank shall own the Program, and all Accounts under the Program, from the time of establishment and Virgin shall not have any right to any indebtedness on an Account or to any Account payment from a Cardholder arising out of or in connection with any Purchases under the Program. Additionally, all information related to the Program, the Accounts set forth in Bank’s records, including without limitation the information listed in Schedule 2.6, the information obtained through applications, the receivables, names, addresses, credit, and transaction information of Cardholders shall be the exclusive property of Bank. Such information and Bank’s Common Information shall be referred to collectively as “Bank Cardholder Information”. Bank shall keep the Accounts and receivables from such Accounts free and clear of any claims, liens, security interests, pledges, encumbrances and similar claims and Bank shall not sell, assign, transfer pledge, securitize or otherwise transfer any Account or any receivable generated by any Account except that (i) Bank shall have the right to securitize receivables generated by the Accounts in accordance with the terms of Schedule 2.6(c)(i) provided, that any such Bank securitization shall not interfere in any manner with the Virgin’s right to purchase the Accounts in accordance with Schedule 7.4 and (ii) Bank may sell or transfer written-off Accounts in connection with Bank’s ordinary course collections actions.

(ii) Bank shall provide to Virgin ***** one (1) master file extract, initially containing the information set forth on Schedule 2.6, and subject to change by Bank at any time. Bank may agree to share additional Confidential Information and/or Bank Cardholder Information with Virgin and, unless Bank consents otherwise in advance and in writing, Virgin shall keep such Confidential Information and Bank Cardholder Information confidential as set forth in Section 8.9, and shall not disclose such information to any third-party nor sell, lease, or otherwise transfer such information to any third-party.

2.7 Protection Programs and Enhancement Marketing Services. *****

2.8 Ownership and Licensing of the Parties’ Marks. (a) Subject to the other provisions of this Agreement, Virgin hereby grants to Bank a royalty-free, non-exclusive (except as to branded credit account and card plans per Section 3.5), non-transferable limited license to use the Virgin Marks in the United States solely in satisfaction of its duties, rights and obligations described in this Agreement, including without limitation, using same in any and all promotional materials, Account documentation, advertising, websites, marketing, and solicitations related to the Program, subject to the prior written approval of Virgin, which will not be unreasonably withheld or delayed. Bank shall use the trademark designations “^®” or “TM” or such other designation as Virgin may specify or approve in connection with the Virgin Marks on the Credit Cards, Account documentation and promotional materials. Bank agrees it will not use the Virgin Marks on or in connection with any products or services or for any other purpose other than (i) as explicitly described in this Agreement, (ii) for Bank’s securitization activities; and/or (iii) as required by Applicable Law. In connection with any securitization activities, Bank agrees to prevent the use or publication of any of the Virgin Marks or of the Virgin America name in the title

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or subtitle of any offered securities or in any related prospectus, registration statement or offering materials, other than (i) in a narrative description or table describing the characteristics and/or performance of the designated Accounts for which receivables are being securitized; (ii) a narrative description of the terms of this Agreement, if in connection with any termination or potential termination of this Agreement, Bank in its discretion believes such termination or potential termination of this Agreement (including the terms of the Agreement relating to termination of the Program) would be material to the holders of any offered securities; (iii) any publicly available information relating to Virgin or its Affiliates that Bank in its discretion believes would be material to the holders of any offered securities; (iv) with the prior written approval of Virgin, in a narrative description of the terms of this Agreement; and (v) without limiting the foregoing, such information as may be required to comply with any federal or state securities laws or regulations in connection with any offered securities.

(b) Anything in this Agreement to the contrary notwithstanding, Virgin shall retain all rights in and to the Virgin Marks pertaining to such Accounts, and all goodwill associated with the use of the Virgin Marks (whether under this Agreement or otherwise) shall inure to the benefit of Virgin. Virgin shall have the right, in its sole and absolute discretion, to prohibit the use of any Virgin Marks in any Forms, advertisements or other materials or references proposed to be used by Bank which Virgin in its reasonable business judgment deems objectionable or improper and Bank shall follow the guidelines for the use of the Virgin Marks as set forth in Schedule 2.4(a). Bank shall cease all use of the Virgin Marks upon the termination of this Agreement for any reason unless Bank retains the Accounts after termination of the Agreement. In that case, Bank may use the Virgin Marks for up to ***** following termination solely in connection with the administration and collection of the Accounts.

(c) Virgin recognizes that Bank is the sole owner of the Bank Marks, that Virgin has no rights of ownership or license therein, and that Virgin is not entitled to (and shall not) use the Bank Marks other than as explicitly and specifically provided in this Agreement. As a point of clarification, Bank has and retains all rights in and to Bank Marks and the use thereof, and all goodwill associated with the use of Bank Marks (whether under this Agreement or otherwise) shall inure to the benefit of Bank. Bank shall have the right, in its sole and absolute discretion, to prohibit the use of any Bank Marks in any Program Documents, advertisements, or other materials or references proposed to be used by Virgin which Bank in its reasonable business judgment deems objectionable or improper. Virgin shall cease all use of Bank Marks upon the termination of this Agreement for any reason.

2.9 Elevate Rewards Program. (a) Virgin is the owner of the Elevate Rewards Program (whether operated under that name or some other chosen by Virgin). Subject to Virgin’s obligations set forth on Schedule 2.9 (a), Virgin will be responsible for determining the rules, funding and facilitating redemption of the rewards related to the Elevate Rewards Program. In addition, Virgin will be responsible for ensuring compliance with all Applicable Laws with respect to the Elevate Rewards Program.

(b) Bank and Virgin will work together to ensure system functionality tied to the Accounts to support the Elevate Rewards Program, for matters such as recording the accumulation of Elevate Points, tracking, and lookup/reporting. Any such system functionality provided by Bank shall be at no additional charge to Virgin, to the extent the same does not require Bank to incur material additional internal or external expense. Otherwise, such functionality shall be provided pursuant to terms (including fees to Bank) mutually agreed to by the parties. Notwithstanding the foregoing, Bank shall provide data reasonably necessary for Virgin, or its designee, to fulfill the Value Proposition associated with a Member’s Account at no cost to Virgin.

2.10 Program Value Proposition. The initial benefits, features and rewards associated with the Credit Cards are set forth in Schedule 2.10, and shall be funded by the parties as set forth therein.

2.11 Card Network Selection. Virgin shall have the right to initially select the Card Network for the Program in its sole discretion. In addition, upon ***** prior written notice to Bank, Virgin may change the Card Network during the Term, in accordance with the Card Network processes and procedures for effecting such a change. Notwithstanding the foregoing, any Bank obligations with regard to the process of changing the Card Network shall be completed, for all Accounts, no more than ***** from Bank’s notice of Virgin’s intent to change Card Networks.

2.12 Card Network Products. Bank shall offer, at a minimum, the following network products, and/or successor products, at Program Commencement and throughout the Term as applicable; Visa or MasterCard Platinum, Visa Signature or MasterCard World/World Elite. In addition, Bank shall adapt the applicable product so that it can be effectively marketed and provided to applicants wishing to have the Card embossed with the name of their small business. Subject to the Card Network Rules, Bank shall ensure that Cards issued with credit lines equal to, or higher than, ***** shall be issued as Visa Signature or MasterCard World/World Elite or their successor products as provided by the Network.

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SECTION 3 OPERATION OF THE PROGRAM

3.1 Processing Through Card Network

Virgin shall honor any Credit Card properly issued and currently authorized by Bank pursuant to the Program. So long as the Program transactions are processed through the Card Network, settlement, disputes and chargebacks shall be governed by the Card Network Rules.

3.2 Ownership of Accounts; Fees; Accounting. (a) Bank shall own all the Accounts under the Program from the time of establishment, and except as otherwise provided herein, Virgin shall not have any right to any indebtedness on an Account or to any Account payment from a Cardholder.

(b) The Credit Card Agreement shall include the Rates and Fees as are set forth in Schedule 3.2 (b). In connection with its servicing of the Accounts, Bank may make changes to the Credit Card Agreement on an individual Account by Account basis and without notice to Virgin. On other than an Account by Account basis, Bank may make non-Rates and Fees changes at any time but must provide notice of same to Virgin as is reasonable under the circumstances. With respect to any changes in the Rates and Fees, Bank will, prior to making any such changes, notify Virgin of such changes. Notwithstanding the foregoing, Bank may not increase annual fees set forth on Schedule 3.2 (b) without the prior consent of Virgin.

3.3 Bank Mailings; Insertion of Virgin’s Promotional Materials. Envelope space (including bangtail) for billing statements and Credit Card mailers shall be allocated as follows:

(a) “Priority Materials”, defined as: legally required material, privacy notices, disclosures, Cardholder notices, billing statements, new Credit Card mailers, PIN mailers, Credit Card Agreement, and notices sent by Bank;

(b) Bank’s other inserts (including bangtail).

(c) Virgin’s promotional materials, subject to the following terms:

Subject to the foregoing allocation, at Virgin’s request, Bank will include with the billing statements and new Credit Card mailers Virgin promotional materials provided by Virgin, so long as the materials: (i) are provided to Bank at least ***** prior to the scheduled mailing date of such statements or notices and pursuant to an insert schedule that Virgin provided to Bank at least ***** in advance; (ii) have been approved as to content by Bank (in its reasonable discretion) with respect to any manner of reference to Bank or the Program; (iii) meet all size, weight, or other specifications for such inserts as shall be reasonably set by Bank from time to time; (iv) would not require the removal (in Bank’s standard envelope) of Priority Materials and/or Bank’s other inserts; and (v) are paid for by Virgin, along with all additional postage costs caused by Bank’s insertion of such materials. Bank shall not include any Virgin insert materials (that will result in additional postage expense to Virgin) without Virgin’s prior written consent to pay the additional postage costs.

Bank reserves the right to disallow any inserts which are in violation of Applicable Law, conflict with any other provision of this Agreement, or whose subject matter is reasonably deemed by Bank to be inappropriate in nature.

3.4 Payments. All payments to be made by Cardholders with respect to any amounts outstanding on the Accounts shall be made in accordance with the instructions of Bank and at the location or address specified by Bank. Virgin hereby authorizes Bank, or any of its employees or agents, to endorse “Comenity Capital Bank” upon all or any checks, drafts, money orders or other evidence of payment, made payable to Virgin and intended as payment on an Account, that may come into Bank’s possession from Cardholders and to credit said payment against the appropriate Cardholder’s Account. As to any Cardholder who inquires of Virgin as to where payments on Accounts shall be made, Virgin shall inform them that payments should be made to Bank.

3.5 *****

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3.6 Reports. Bank will deliver to Virgin the reports set forth in Schedule 3.6, as specified therein and to the extent information is available and applicable. Bank may provide any additional reports requested by Virgin upon such terms and conditions (including reasonable costs) as are mutually agreed to by the parties.

3.7 *****

3.8 Purchase, Reporting and Posting of Elevate Points.

(a) Point Reporting. Once *****, per Cardholder *****, Bank will send to Virgin or its designee, in an agreed upon electronic format and by an agreed upon process, the earned Elevate Points for each Elevate Rewards Program Cardholder for that month.

(b) Point Posting. Virgin shall post Elevate Points earned through the Program to the applicable Cardholder’s Elevate Reward Program account within ***** of the receipt of the report described in Section 3.8(a).

3.9 Program Economics. In connection with the Program, Bank will make the payments to Virgin described and in accordance with Schedule 3.9.

3.10 Implementation. The parties shall cooperate in good faith to develop and implement an annual marketing plan designed to maximize the profitable growth of the Program with regard to the number of new Accounts, total Accounts, and Purchases. The annual marketing plan shall be mutually agreed upon, such agreement not to be unreasonably withheld. The parties understand and acknowledge that the ability to develop and implement new consumer offers and promotions is integral to the success of the Program. Accordingly, Bank agrees that upon agreement by the parties on new offers or promotions, Bank shall take no more than ***** to implement, or enable Virgin to implement said offer or promotion. Virgin acknowledges that the foregoing obligation of Bank is limited to elements of the offer or promotion that is solely within Bank’s control and that Virgin will cooperate with Bank to ensure cooperation by third parties necessary for implementation.

SECTION 4. REPRESENTATIONS AND WARRANTIES

Each party makes the following representations and warranties to the other party as of the date of this Agreement:

4.1 Organization, Power and Qualification.

Such party is duly organized, validly existing and in good standing under the laws of its jurisdiction or organization and has full power and authority to enter into this Agreement and to carry out the provisions of this Agreement. Such party is duly qualified and in good standing to do business in all jurisdictions where located and/or conducting business, except where the failure to be so qualified would not have a material adverse effect on such party’s business or such party’s or the other party’s ability to perform as required under this Agreement or operate the Program.

4.2 Authorization, Validity and Non-Contravention.

(a) This Agreement has been duly authorized by all necessary corporate proceedings (or analogous governing proceedings) by such party. Further, this Agreement has been duly executed and delivered by such party, and is a valid and legally binding agreement of such party and duly enforceable in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equity principles).

(b) No consent, approval, authorization, order, registration or qualification of or with any court or regulatory authority or other governmental body having jurisdiction over such party is required for (nor would the absence of such adversely affect) the legal and valid execution and delivery of this Agreement, and the performance of the transactions contemplated by this Agreement.

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(c) The execution and delivery of this Agreement by such party and the compliance by such party with all provisions of this Agreement: (i) will not conflict with or violate any Applicable Law; and (ii) will not conflict with or result in a breach of or default under any of the terms or provisions of any indenture, loan agreement, or other contract or agreement to which such party is a party (including but not limited to any under which such party is an obligor or by which its property is bound) where such conflict, breach or default would have a material adverse effect on such party or the Program, nor will such execution, delivery or compliance violate or result in the violation of the Articles of Incorporation or By-Laws (or analogous rules of governance) of such party.

4.3 Compliance with Law.

Any action taken by such party or inaction (where such party has a duty to act) in connection with the Program and/or the other party hereto, shall be in compliance with all Applicable Law, except where the failure to comply, individually or in the aggregate, does not or will not have a material adverse effect on such party, such other party, or the Program.

4.4 Intellectual Property Rights.

(a) In the event Virgin provides any software or hardware to Bank, Virgin has the legal right to such software or hardware and the right to permit Bank to use such software or hardware, and such use shall not violate any intellectual property rights of any third party. Any software or other technology developed by or for Virgin or its Affiliates, to facilitate the Program, including but not limited to, software and software modifications developed in response to Bank’s request or to accommodate Bank’s special requirements and all derivative works, regardless of the developer thereof, will remain the exclusive property of Virgin and/or its Affiliates. Nothing in this Agreement shall be deemed to convey a proprietary interest to Bank or any third party in any of the software, hardware, technology or any of the derivative works thereof which are owned or licensed by Virgin and/or its Affiliates, and Bank shall return to Virgin all materials containing such intellectual property upon termination of this Agreement.

(b) In the event Bank provides any software or hardware to Virgin, Bank has the legal right to such software or hardware and the right to permit Virgin to use such software or hardware, and such use shall not violate any intellectual property rights of any third party. Any software or other technology developed by Bank or its Affiliates or developed for Bank or its Affiliates at Bank’s expense, to facilitate the Program, including but not limited to, software and software modifications developed in response to Virgin’s request or to accommodate Virgin’s special requirements and all derivative works, regardless of the developer thereof, will remain the exclusive property of Bank and/or its Affiliates. Nothing in this Agreement shall be deemed to convey a proprietary interest to Virgin or any third party in any of the software, hardware, technology or any of the derivative works thereof which are owned or licensed by Bank and/or its Affiliates, and Virgin shall return to Bank all materials containing such intellectual property upon termination of this Agreement.

4.5 Virgin Marks.

In the case of Virgin, Virgin has the legal right to use and to permit Bank to use, to the extent set forth herein, the Virgin Marks.

SECTION 5. COVENANTS

Each party hereby covenants and agrees as follows:

5.1 Notices of Changes. Each party will as soon as reasonably possible notify the other of any: (a) change in the name or form of its business organization, change in the location of its chief executive office or the location of the office where its records concerning the Program are kept; (b) merger or consolidation of such party, the sale of a significant portion of its stock (or other form of ownership) or the sale of a substantial amount of its assets not in the ordinary course of business, or any change in the control of such party; (c) material adverse change in its financial condition or operations; (d) any change in business practices of such party that would have a material adverse effect on this Agreement or the Program; (e) in the case of Virgin, any occurrence that would constitute a Bank Termination Event under Section 7.2; or (f) in the case of Bank, any occurrence that would constitute a Virgin Termination Event under Section 7.3. Each party will furnish such additional information with respect to any of the foregoing as the other party may request, for the purpose of evaluating the effect of such change on the financial condition and operations of the affected party and on the Program.

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5.2 Financial Statements. Each party shall furnish to the other as soon as available the following information (on a consolidated basis if applicable): (a) a balance sheet as of the close of each fiscal year; (b) a statement of income, retained earnings, and paid-in capital to the close of each fiscal year; (c) a statement of cash flow to the close of each such period; and (d) a copy of the opinion submitted by such party’s independent certified public accountants in connection with such of the financial statements as have been audited. Provided, however, that as long as Bank is a subsidiary of Alliance Data Systems Corporation (“ADSC”), and ADSC is publicly traded, Bank may satisfy the foregoing requirements by ADSC’s filing with the SEC copies of its quarterly 10-Q filings, annual 10-K filing, and a quarterly statement of operating income (based on ADSC’s fiscal quarter).

5.3 Access Rights.

(a) Subject to (b) below, each party will permit, once per Program Year unless the other party has reasonable cause to do so more than once, authorized representatives designated by the accessing party, at accessing party’s expense, to visit its facilities and inspect, to the extent permitted by Applicable Law, any of its books and records pertaining to Applicants, Accounts and any category of payments owed by one party to the other, and to make copies and take extracts there from, and to discuss the same with its officers and independent public accountants, all at reasonable times during normal business hours on at least ***** advance notice to the other party. In addition, Virgin shall permit regulatory bodies having jurisdiction over Bank to visit its facilities related to the Program during normal business hours with advance notice.

(b) Each party’s obligations under (a) shall not be required to the extent that (i) such access is prohibited by Applicable Law, (ii) such records are legally privileged, or (iii) such records are planning documents or those of any of its Affiliates, operating budgets, management reviews or employee records.

5.4 Each Party’s Business. Each party shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence (or analogous business form) and to comply with all Applicable Laws in connection with its business, including, but not limited to: (i) compliance with all applicable license requirements related to its business, and (ii) fulfilling its obligations under the Program.

5.5 Insurance. Each party shall maintain insurance policies with insurers, and in such amounts and against such types of loss and damage, as are customarily maintained by other companies engaged in similar businesses within such party’s industry.

5.6 Compliance with Agreement and Applicable Law. Each party shall comply with all Applicable Laws in performing its obligations under this Agreement and use commercially reasonable efforts to ensure that its Affiliates, licensees, franchises, officers, directors, associates and agents comply with the terms of this Agreement and Applicable Law, and each party shall be responsible for their respective actions and omissions as provided elsewhere in this Agreement.

SECTION 6 INDEMNIFICATION

6.1 Indemnification Obligations. (a) Each party shall be liable to and shall indemnify and hold harmless the other and its Affiliates and their respective officers, directors, employees, subcontractors and their successors and assigns (collectively “Indemnified Parties”) from any and all Losses (as hereinafter defined) incurred by them by reason of: (i) The indemnifying party’s breach of any representation, warranty or covenant hereunder; (ii) The indemnifying party’s failure to perform its obligations hereunder; (iii) any action or failure to act (where there was a duty to act) by the indemnifying party related to the Program and/or as otherwise provided for in this Agreement; (iv) The indemnifying party having caused Losses to third parties, where such third parties have sought recovery from Indemnified Parties; and (v) The indemnified party’s defending against claims described in (iv). In any case, the indemnifying party’s liability does not extend to Losses proximately arising from an act or failure to act by Indemnified Parties. Additionally, Virgin shall indemnify Bank and its Indemnified Parties for any Losses caused by or related to Virgin Goods or Services charged to an Account and Bank shall indemnify Virgin for all Losses caused by or related to Account matters, including Cardholder credit decisions, billing matters, collections, payment processing, funding receivables, fraud control, and administration of the Accounts.

(b) For purposes of this Section 6, the term “Losses” shall mean any liability, damage, costs, fees, losses, judgments, penalties, fines, and expenses, including without limitation, any reasonable attorneys’ fees,

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disbursements, settlements (which require the other party’s consent which shall not be unreasonably withheld), and court costs, reasonably incurred by Bank, Virgin, or a third-party, as the case may be, without regard to whether or not such Losses would be deemed material under this Agreement; provided however, that Losses shall not include any overhead costs that either party would normally incur in conducting its everyday business.

6.2 LIMITATION ON LIABILITY. (a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL LOSSES; OR (ii) LOST PROFITS AND/OR LOST BUSINESS RELATIONSHIPS/OPPORTUNITIES WITH THIRD PARTIES, THAT THE OTHER PARTY INCURS OR CLAIMS TO HAVE INCURRED ARISING OUT OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY IN THE EVENT OF (I) INDEMNIFICATION CLAIMS (INCLUDING INDEMNIFICATION FROM INFRINGEMENT CLAIMS OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS), (II) BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, OR (III) WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

*****

6.3 NO WARRANTIES. EXCEPT AS PROVIDED HEREIN, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THE SERVICES AND/OR OTHER PRODUCTS SOLD OR PROVIDED BY BANK PURSUANT TO THIS AGREEMENT.

6.4 Notification of Indemnification; Conduct of Defense. (a) In no case shall the indemnifying party be liable under Section 6.1 of this Agreement with respect to any claim or claims made against the indemnified party or any other person so indemnified unless it shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof. However, failure to so notify the indemnifying party shall not relieve it from any liability which it may have under other provisions of this Agreement, except to the extent that the indemnifying party’s right to defend the matter is materially and irrevocably prejudiced by such failure to give prompt notice.

(b) The indemnifying party shall be entitled to participate, at its own expense, in the defense of any suit brought against the indemnified party which gives rise to a claim against the indemnifying party. Alternatively, the indemnifying party may elect to assume defense of such claim, but must do so within a reasonable time after receiving notice of the claim. However, if the indemnifying party so elects to assume the defense, such defense shall be conducted by counsel chosen by the indemnifying party and approved by the indemnified party (or the person or persons so indemnified, who are the defendant or defendants in any suit so brought), which approval shall not be unreasonably withheld. Once the indemnifying party has retained counsel approved by the indemnified party, the indemnified party (or the person or persons so indemnified who are the defendant or defendants in the suit), shall bear the fees and expenses of any additional counsel it chooses to retain.

SECTION 7 TERM, EXPIRATION AND TERMINATION

7.1 Term and Expiration. See Schedule 7.1.

7.2 Termination with Cause by Bank; Bank Termination Events. Any of the following conditions or events shall constitute a “Bank Termination Event” hereunder, and Bank may terminate this Agreement immediately without further action if such Bank Termination Event occurs:

(a) If Virgin shall: (i) generally not pay its debts as they become due; (ii) file, or consent by answer or otherwise to the filing against it, of a petition for relief, reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction; (iii) make an assignment for the benefit of its creditors; (iv) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property; (v) be adjudicated insolvent or be liquidated; (vi) take corporate action for the purpose of any of the foregoing and such event shall materially adversely affect the ability of Virgin to perform under this Agreement or the Program; (vii) have a change in its financial condition that materially adversely affects the ability of Virgin to perform under this Agreement or the Program; or (viii) receive an adverse opinion by its auditors or accountants and/or a negative opinion by same as to Virgin’s viability as a going concern; or

(b) If a court or government authority of competent jurisdiction shall enter an order appointing, without consent by Virgin, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding up or liquidation of Virgin, or if any petition for any such relief shall be filed against Virgin and such petition shall not be dismissed within *****; or

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(c) If Virgin shall default in the performance of or compliance with any term or violates any of the covenants, representations, warranties or agreements contained in this Agreement and Virgin shall not have remedied such default within ***** after written notice thereof shall have been received by Virgin from Bank; provided that, if such condition is incapable of being remedied within the ***** remedy period and Virgin is diligently proceeding to remedy such condition, then said ***** may be extended to a maximum of *****, or

(d) If Bank exercises its rights under Section 8.6 [Force Majeure]; or

(e) If at any time during the Term, Virgin’s aggregate number of available seat miles in any ***** have been reduced by more than *****, as compared to Virgin’s aggregate available seat miles in calendar year 2013, then (i) at Bank’s option, the Initial Term shall be extended by ***** to permit any unearned portion of the Annual Revenue Guarantees for any prior Program Year to be earned and (ii) if Virgin shall not have remedied such default within ***** after written notice of such event, Bank may terminate this Agreement. During any additional Program Year provided for in this clause Section 7.2(e), no Annual Revenue Guarantee will be payable and no additional amounts will be payable by Bank to Virgin hereunder until the earlier of (i) Virgin’s remedy of the default related to the reduction in available seat miles or (ii) all unearned portions of the Annual Revenue Guarantee paid in any prior Program Year have been fully earned. In the event that Virgin remedies the default and/or Bank elects not to terminate this Agreement, the terms of this Section 7.2(e) will apply again if the event described above occurs in any subsequent period.

(f) If at the end of any calendar month during the Term, the number of Members in the Elevate Rewards Program has been reduced by more than *****, as compared to the number of Members in the Elevate Rewards Program as of the Program Commencement Date, and such condition continues unremedied for a period of ***** after the date of occurrence; provided, that if such condition is incapable of being remedied within the ***** remedy period and Virgin is diligently proceeding to remedy such condition, then said ***** shall be extended to a maximum of ***** (and the Initial Term shall be extended by ***** to permit any unearned portion of the Annual Revenue Guarantees for any prior Program Year to be earned); provided further, if Virgin is unable to correct the deficiency in such period then Bank shall have the right to terminate the agreement. During any additional Program Year provided for in this clause Section 7.2(f), no Annual Revenue Guarantee will be payable and no additional amounts will be payable by Bank to Virgin hereunder until the earlier of (i) Virgin’s remedy of the default in the reduction in the number of Members in the Elevate Rewards Program or (ii) all unearned portions of the Annual Revenue Guarantee paid in any prior Program Year have been fully earned. In the event that Virgin remedies the default and/or Bank elects not to terminate this Agreement, the terms of this Section 7.2(f) will apply again if the event described above occurs in any subsequent period.

7.3 Termination with Cause by Virgin; Virgin Termination Events. Any of the following conditions or events shall constitute a “Virgin Termination Event” hereunder, and Virgin may terminate this Agreement immediately without further action if such Virgin Termination Event occurs:

(a) If Bank shall: (i) generally not be paying its debts as they become due; (ii) file or consent by answer or otherwise to the filing against it, of a petition for relief, reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction; (iii) make an assignment for the benefit of its creditors; (iv) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers for itself or of any substantial part of its property; (v) be adjudicated insolvent or be liquidated; or (vi) take corporate action for the purpose of any of the foregoing and such event shall materially adversely affect the ability of Bank to perform under this Agreement or the operation of the Program and such event shall materially adversely affect the ability of Bank to perform under this Agreement or the Program; or (vii) have a change in its financial condition, including, but not limited to being downgraded by a rating agency to a rating below an investment grade rating, that materially adversely affects the ability of Bank to perform under this Agreement or the Program; or (viii) receive an adverse opinion by its auditors or accountants as to its viability as a going concern; or (ix) breach or fail to perform or observe any covenant or other term contained in any creditor loan agreement, debt instrument or any other material agreement to which it is bound, which breach or failure, if left uncured could result in a default of such agreement; or

(b) If a court or government authority of competent jurisdiction shall enter an order appointing, without consent by Bank, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding up or liquidation of Bank, or if any petition for any such relief shall be filed against Bank and such petition shall not be dismissed within *****; or

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(c) Except with respect to the Service Standards, if Bank shall default in the performance of or compliance with any term or violates any of the covenants, representations, warranties or agreements contained in this Agreement and Bank shall not have remedied such default within ***** after written notice of the default thereof shall have been received by Bank from Virgin; provided that, if such condition is incapable of being remedied within the ***** remedy period and Bank is diligently proceeding to remedy such condition, then said ***** may be extended to a maximum of *****; or

(d) With respect to Service Standards, as set forth on Schedule 2.1 (h); or

(e) If Virgin exercises its rights under Section 8.6 [Force Majeure]; or

(f) As described in Schedule 2.1 (g).

7.4 Purchase of Accounts. See Schedule 7.4.

7.5 Effect of Termination. In the event this Agreement is terminated by either party prior to the end of the Term for any reason, the following shall apply:

(a) Bank’s obligation to pay the Annual Revenue Guarantees shall cease as of the effective date of the termination; provided, however, that Bank shall continue making the other payments set forth on Schedule 3.9 until the date the Agreement is actually terminated to the extent the Annual Revenue Guarantee for such Program Year already paid by Bank to Virgin are not sufficient to meet such amounts owing.

(b) If the Agreement is terminated by Bank due to any Bank Termination Event (including as provided in Schedule 3.9), by either party pursuant to Schedule 2.9 (a), by Virgin pursuant to Schedule 7.1, or by Virgin pursuant to Section 7.3(e) or (f), no later than ***** following the termination of the Agreement, Virgin shall repay to Bank the unearned portion of any Annual Revenue Guarantee for any Program Year previously paid by Bank to Virgin (including any Annual Revenue Guarantee paid by Bank following the date the event giving rise to the applicable termination right of Bank or Virgin occurred, which shall be repaid to Bank pursuant to clause (a) above).

(c) If the Agreement is terminated by Virgin pursuant to Section 7.3(a), (b), (c) or (d), Virgin will be entitled to retain the unearned portion of any Annual Revenue Guarantee for any Program Year previously paid by Bank to Virgin (other than any Annual Revenue Guarantee paid by Bank following the date the event giving rise to the applicable termination right of Virgin occurred, which shall be repaid to Bank pursuant to clause (a) above).

(d) As used in this Agreement, the “unearned” portion of any Annual Revenue Guarantee for any Program Year shall mean any portion of any Annual Revenue Guarantee paid by Bank to Virgin hereunder that was not applied to an amount otherwise owed by Bank to Virgin pursuant to Schedule 3.9 during such Program Year.

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SECTION 8 MISCELLANEOUS

8.1 Entire Agreement; Amendment; No Waiver; Severability; Counterparts; Captions and Cross References; Mutual Drafting. This Agreement constitutes the entire Agreement and supersedes all prior representations, proposals, offers, agreements and understandings, whether oral or written, among the parties hereto with respect to the subject matter hereof and merges all prior discussions between them. Except as otherwise provided for in this Agreement, the provisions herein may be modified only upon the mutual agreement of the parties, however, no such modification shall be effective until reduced to writing and executed by both parties. No waiver of the provisions hereto shall be effective unless in writing and shall not be deemed to be a continuing waiver unless expressly so stated in writing. No failure or delay on the part of either party in exercising any power or right under this Agreement shall be deemed to be a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. If any of the provisions or parts of the Agreement are determined to be illegal, invalid or unenforceable in any respect, such provisions or parts shall be deemed omitted without affecting any other provisions or parts of the Agreement which shall remain in full force and effect. This Agreement may be signed in one or more counterparts, all of which shall be taken together as one agreement. The table of contents and various captions in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to any Section are to such Section of this Agreement. This Agreement is the joint product of Virgin and Bank and each provision hereof has been subject to mutual consultation, negotiation and agreement of Virgin and Bank; therefore to the extent any language in this Agreement is determined to be ambiguous, it shall not be construed for or against any party based on the fact that either party controlled the drafting of the document.

8.2 Coordination of Public Statements. Except as required by Applicable Law, including, without limitation, any SEC filings reasonably deemed by a party to be required (in which case the party making such filing will provide notice thereof to the other, in advance whenever possible, and shall when possible redact any and all exhibits, schedules and such other information as the parties may discuss), neither party will make any public announcement of the Program or provide any information concerning the Program to any representative of any news, trade or other media without the prior approval of the other party, which approval will not be unreasonably withheld. Neither party will respond to any inquiry from any public or governmental authority, except as required by Applicable Law, concerning the Program without prior consultation and coordination with the other party.

8.3 Successors and Assigns. This Agreement and all obligations and rights arising hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld in the case of a proposed assignment to an Affiliate. Subject to Section 3.7(c), in the event that Virgin merges, sells, transfers or otherwise disposes of all or substantially all of the assets that comprise the line-of-business currently operating under the name “Virgin America” or “Elevate” to a purchaser, and the purchaser in such transaction is a legal successor-in-interest of Virgin (the defined party to this Agreement),the terms of this Agreement shall be binding upon such successor (regardless of whether or not such entity is a parent, Affiliate, or party with some other relationship of the kind with Virgin, and regardless of under what name the business is conducted).

8.4 Notices. All communications and notices pursuant hereto to either party shall be in writing and addressed or delivered to it at its address shown below, or at such other address as may be designated by it by notice to the other party, and shall be deemed given when delivered by hand, or two (2) Business Days after being mailed (by certified mail with postage prepaid and return receipt requested) or when received by receipted courier service:

If to Bank:	If to Virgin:
Comenity Capital Bank	Virgin America Inc.
2795 E. Cottonwood Parkway	555 Airport Boulevard, Suite 500
Suite #100	Burlingame, CA 94402
Salt Lake City, UT 84121	Attn.: VP Marketing
Attn: President

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With a Copy to:	With a Copy to:
ADS Alliance Data Systems, Inc.	General Counsel (at the same address)
3100 Easton Square Place
Columbus, OH 43219
Attn: Law Department

8.5 GOVERNING LAW/WAIVER OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE DICTATES OF THE CONFLICTS OF LAW PROVISIONS OF NEW YORK OR ANY OTHER JURISDICTION. ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH HEREOF OR THREOF, THE RIGHTS GRANTED OR OBLIGATIONS UNDERTAKEN HEREIN OR THEREIN, SHALL PROCEED IN A FEDERAL OR STATE COURT LOCATED IN THE COUNTY AND STATE OF THE PARTY AGAINST WHOM SUCH DISPUTE, CONTROVERSY OR CLAIM IS INITIATED. EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL.

(b) THE PROVISIONS IN THE PRECEDING PARAGRAPH DO NOT APPLY TO ALL MATTERS RELATED TO THE ACCOUNTS, THE CREDIT CARD AGREEMENTS, THE CARDHOLDERS AND THE FORMS, TO THE EXTENT RELATED TO THE RELATIONSHIP BETWEEN THE CARDHOLDERS AND BANK, ALL OF WHICH SHALL BE GOVERNED BY UTAH LAW.

8.6 Force Majeure. Neither party will be responsible for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, and not due to the fault or negligence of such party, including, but not limited to, acts of God, flood, criminal acts, fire, riot, computer viruses or hackers where such party has utilized commercially reasonable means to prevent the same, accident, strikes or work stoppage, embargo, sabotage, terrorism, inability to obtain material, equipment or phone lines, government action (including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Agreement), and other causes whether or not of the same class or kind as specifically named above. In the event a party is unable to perform substantially for any of the reasons described in this Section, it will notify the other party promptly of its inability so to perform, and if the inability continues for at least *****, the party so notified may then terminate this Agreement forthwith. This provision shall not, however, release the party unable to perform from using its best efforts to avoid or remove such circumstance and such party unable to perform shall continue performance hereunder with the utmost dispatch whenever such causes are removed.

8.7 Survival. No termination or expiration of this Agreement shall in any way affect or impair the powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring prior to such termination or expiration. No powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring after termination or expiration shall survive termination or expiration except for the following Sections and their corresponding schedules: Section 2.8, Section 3.2, Section 3.4, Section 6, Section 7.4, Section 7.5, Section 8.4, Section 8.5, Section 8.6, Section 8.9 and Section 8.10.

8.8 Relationship of Parties; Third Parties; Independent Contractor. This Agreement does not constitute the parties as partners or joint venturers and neither party will so represent itself. The provisions of this Agreement are for the benefit of the parties hereto and not for any other person or entity. The parties hereby declare and agree that Bank is engaged in an independent business, and shall perform its obligations under this Agreement as an independent contractor; that any of Bank’s personnel performing the services hereunder are agents, employees, Affiliates, or subcontractors of Bank and are not agents, employees, Affiliates, or subcontractors of Virgin; that Bank has and hereby retains the right to exercise full control of and supervision over the performance of Bank’s obligations hereunder and full control over the employment, direction, compensation and discharge of any and all of the Bank’s agents, employees, Affiliates, or subcontractors, including compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other federal, state and local laws, rules and regulations governing such matters; that Bank shall be responsible for Bank’s own acts and those of Bank’s agents, employees, Affiliates, and subcontractors; and that except as expressly set forth in this Agreement, Bank does not undertake by this Agreement or otherwise to perform any obligation of Virgin, whether regulatory or contractual, or to assume any responsibility for Virgin’s business or operations.

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8.9 Confidentiality and Security Control.

(a) Confidential Information and Other Protected Information. Except as specifically provided in this Section 8.9, neither party shall disclose any Confidential Information (defined below) which it learns as a result of negotiating or implementing this Agreement. Additionally, the use and/or disclosure of any Consumer Personal Information, Virgin Member Information, and/or Bank Cardholder Information shall be subject to Applicable Law, Section 2.6, and this Section 8.9. “Confidential Information” shall mean all material and information not of a public nature concerning the business or properties of the other party including, without limitation: the terms and conditions of this Agreement (as well as proposed terms and conditions of any amendments, renewals, or extensions of this Agreement), marketing plans, business plans, financial results, Virgin member names and other Elevate Rewards Program information, Cardholder names, card usage, sales volumes, test results, and results of marketing programs, Program reports and files generated by Bank (in the case of Bank), trade secrets, business and financial information, source codes, business methods, procedures, know-how and other information (including but not limited to intellectual property) of every kind that relates to the business of either party.

However, the definition of “Confidential Information” specifically excludes information which:

(i) is generally known to the trade or to the public at the time of such disclosure; or

(ii) becomes generally known to the trade or the public subsequent to the time of such disclosure; provided, however, that such general knowledge is not the result of a disclosure in violation of this Section 8.9; or

(iii) is obtained by a party from a source other than the other party, without breach of this Agreement or any other obligation of confidentiality or secrecy owed to such other party or any other person or organization; or

(iv) is independently conceived and developed by the disclosing party and proven by the disclosing party through tangible evidence not to have been developed as a result of a disclosure of information to the disclosing party, or any other person or organization which has entered into a confidential arrangement with the non-disclosing party; or

(v) Bank is required to report to a Card Network by such Card Network’s applicable rules and regulations.

(b) Permitted Uses and Disclosures. Nothing in this Section 8.9 shall be interpreted to mean that a party is restricted with respect to the use or disclosure of Confidential Information which it owns. The parties may also disclose any Consumer Personal Information or Confidential Information under the following circumstances. First, to the extent disclosure is required by Applicable Law. Second, to the extent disclosure is both permitted by Applicable Law and either necessary for the performance of the disclosing party’s obligation under this Agreement and/or agreed to in writing by the other party, provided that: (i) prior to disclosing any such information to any third party, the party making the disclosure (to the third party) shall give notice to the other party of the nature of such disclosure and of the fact that such disclosure will be made; and (ii) prior to filing a copy of this Agreement (whole or partial) with any governmental authority or agency, the filing party will consult with the other party with respect to such filing and shall redact such portions of this Agreement which the other party requests be redacted, unless, in the filing party’s reasonable judgment based on the advice of its counsel (which advice shall have been discussed with counsel to the other party), the filing party concludes that such request is inconsistent with the filing party’s obligations under Applicable Law. Notwithstanding anything to the contrary in this Agreement, Bank may disclose Confidential Information concerning this Agreement in order to facilitate and/or maintain Bank’s securitization activities.

(c) Protecting Disclosed Information. When, pursuant to subsection (b) above, one party discloses the other party’s Confidential Information or Consumer Personal Information to the disclosing party’s Affiliate or a third-party, the disclosing party shall be responsible for ensuring that such disclosure complies with Applicable Law. Furthermore, the disclosing party shall ensure that the Affiliate or third-party executes a confidentiality agreement with the disclosing party provided by or approved in writing by the non-disclosing party, or, in the event Bank Confidential Information is to be disclosed to a Virgin consultant and/or a potential purchaser of the Portfolio as described in Schedule 7.4, such confidentiality agreement shall be executed by both Bank and the recipient of the Bank Confidential Information, and in either event the confidentiality agreement shall require that the recipient of Confidential Information keeps all such information in confidence. Each party covenants that at all times it shall have in place procedures designed to assure that each of its employees who is given access to the other party’s Consumer Personal Information or Confidential Information shall protect the privacy of such information. Each party acknowledges that any breach of the confidentiality provisions of this Agreement by it will result in

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

irreparable damage to the other party and therefore in addition to any other remedy that may be afforded by law any breach or threatened breach of the confidentiality provisions of this Agreement may be prohibited by restraining order, injunction or other equitable remedies of any court.

(d) Protecting Stored Information. Each party shall establish commercially reasonable controls to ensure the confidentiality of any Consumer Personal Information and the other’s Confidential Information. Each party shall also ensure that such information is not disclosed contrary to the provisions of this Agreement, or any applicable privacy, security or other laws, rules and regulations. Without limiting the foregoing, each party shall implement such physical and other security measures as are necessary to (i) ensure the security and confidentiality of any Consumer Personal Information and the other’s Confidential Information, (ii) protect against any threats or hazards to the security and integrity of such information, (iii) protect against any unauthorized access to or use of such information, and (iv) properly dispose of any Consumer Personal Information as required under Applicable Law. Each party shall promptly notify the other party in the event it believes, or has reason to believe, that a confidentiality or security breach, or any other unauthorized intrusion, has occurred with respect to Consumer Personal Information and such notice shall specify the corrective action taken and to be taken by the party subject to such intrusion.

(e) If, upon expiration or termination of this Agreement, Virgin or its designee does not purchase the Accounts from Bank pursuant to Section and Schedule 7.4, Virgin shall take appropriate measures to destroy or remove from its systems Bank’s Cardholder, Confidential, and Consumer Personal Information. This includes but is not limited to any and all records regarding Cardholders whether in paper, electronic, or other form, that is maintained or otherwise possessed by or on behalf of Virgin, including a compilation of such records; provided, that Virgin may retain such data reasonably necessary for Virgin to provide ongoing customer service support to Members or for financial accounting purposes. If Virgin or its designee does purchase the Accounts at such time, Virgin’s obligation to remove or destroy information shall apply only to any Bank Confidential Information that is not comprised of Bank Cardholder Information or Consumer Personal Information.

8.10 Taxes. Anything to the contrary notwithstanding, Bank shall be responsible for the payment of all federal excise taxes pursuant to Section 4261 of the Internal Revenue Code, or any successor federal excise tax related to Bank’s purchase of Elevate Points under this Agreement (“Excise Tax”). If, at any time, any governmental agency or authority determines that additional Excise Taxes are due because of a determination by such agency or authority that the allocation between transportation and non-transportation costs is properly other than as previously paid, Bank shall indemnify and hold harmless Virgin from such additional Excise Taxes, including all interest and penalties thereon. As to taxes other than the Excise Tax, each party is responsible for its own tax obligations as assessed by taxing authorities under Applicable Law. The parties agree to cooperate with each other in connection with any tax matters related to this Agreement.

[Signature block on following page.]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in manner and form sufficient to bind them as of the date first above written.

COMENITY CAPITAL BANK		VIRGIN AMERICA INC.
By:	/s/ Ronald J. Ostler	By:	/s/ Peter D. Hunt
Title:	President	Title:	SVP & Chief Financial Officer

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Schedule 1.2

Definitions and Other Obligations

A. DEFINITIONS

As used herein and unless otherwise required by the context, the following terms shall have the following respective meanings.

“Account” shall mean an individual general purpose open-end revolving line of credit which is (i) established by Bank for a Member pursuant to the terms of a Credit Card Agreement and in accordance with the applicable Card Network rules and regulations, and (ii) marketed with a Virgin Mark and the trade names and/or logos of a Card Network.

“Account Center” shall mean an electronic customer service system Bank makes available on a Bank website.

“Affiliate” shall mean with respect to a party any entity that is owned by, owns, or is under common control with such party.

“Applicable Law” shall mean any applicable federal, state or local law, rule, or regulation including but not limited to formal or informal direction from Bank’s primary banking regulator(s), as well as the Card Network Rules.

“Applicant” shall mean an individual who applies for an Account under the Program.

“Application Procedure(s)” shall mean, as applicable, Bank’s proprietary application procedures in which Applicant information is communicated to Bank in a form and through a process determined by Bank. Application Procedures include but are not limited to Bank’s instant credit, quick credit, online prescreen, batch prescreen, automated telephone, take-one, web and mobile application procedures, each of which is more specifically described in the Operating Procedures.

“Bank Mark” shall mean the trademarks, service marks, or trade names owned by or licensed (and capable of being sublicensed) to Bank and designated by Bank to Virgin for use in connection with the Program as set forth in Schedule 1.2(a).

“Business Day” shall mean any day, except Saturday, Sunday, federal holidays, or a day on which banks in Utah are required to be closed.

“Cardholder” shall mean any natural person to whom an Account has been issued by Bank and/or any authorized user of the Account.

“Card Network” shall mean a nationwide payment clearing network such as MasterCard International, Inc., Visa U.S.A. Inc., American Express, or Discover, in which the Accounts participate.

“Card Network Rules” shall mean the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by the Card Network participating in the Program.

“Consumer Personal Information” shall mean that non-public personal information regarding Applicants, Members, and Cardholders, including but not limited to Account information consumer reports, and information derived from consumer reports, that is subject to protection from publication under Applicable Law.

“Credit Card” shall mean the credit card issued by Bank to Cardholders, which is a general purpose Account credit card bearing the trademark or logo of the applicable Card Network (designated by Bank), corresponding to a related Account for the purpose of making Virgin Purchases and General Purchases pursuant to this Agreement.

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“Credit Card Agreement” shall mean the open-end revolving credit agreement between a Cardholder and Bank governing the Account and Cardholder’s use of the Credit Card, together with any modifications or amendments which may be made to such agreement.

“Electronic Bill Presentment and Payment (or EBPP)” shall mean a procedure whereby Cardholders can elect to receive their billing statements electronically and that also allows them an opportunity to remit their Account payments to Bank electronically.

“Elevate Point” means any credit under the Elevate Rewards Program issued in any form by Virgin that entitles the holder to acquire travel on Virgin’s airline or any other benefits offered by the Elevate Rewards Program.

“Elevate Rewards Program” shall have the meaning set forth in the recitals.

“Financial Products” shall mean credit card or credit issuance programs similar in purpose to those covered by this Agreement.

“Forms” shall have the meaning set forth in Section 2.4.

“General Net Sales” shall mean General Purchases, less credits or refunds for goods and/or services, calculated each Business Day.

“General Purchase” shall mean a purchase of non-Virgin Goods and/or Services including without limitation all applicable taxes and shipping costs, with a specific extension of credit by Bank to a Cardholder using an Account as provided for under this Agreement. A General Purchase is not included within the definition of a Virgin Purchase.

“Initial Term” shall have the meaning set forth in Schedule 7.1.

“Member” shall mean an individual who has been enrolled as a member in the Elevate Rewards Program with a mailing address in the United States.

“Net Sales” shall mean Virgin Net Sales and General Net Sales, collectively.

“Operating Procedures” shall mean Bank’s instructions and procedures regarding the Program as written by Bank and provided to Virgin to be followed by Virgin, such instructions and procedures to be strictly limited to legal and regulatory considerations. For the avoidance of doubt, Virgin’s operations including, but not limited to, airline operations, management of the Elevate Rewards Program, customer and employee procedures and sales and marketing initiatives are explicitly not Operating Procedures.

“Premium Card” shall mean the Credit Card described as “Premium Card” on Schedule 2.10.

“Platinum Card” shall mean the Credit Card described as “Platinum Card” on Schedule 2.10.

“Program” shall mean the Co-Brand credit card program established and administered by Bank for Members by virtue of this Agreement.

“Program Commencement Date” shall mean the earlier of the date on which Bank begins to issue new Accounts or the date on which Bank notifies Virgin in writing that Bank has commenced operation of the Program, such date to be documented as an addendum to this Agreement.

“Program Year” shall mean each consecutive twelve (12) month period commencing on the Program Commencement Date or the first day of the first full calendar month following the Program Commencement Date if the Program Commencement Date is not the first day of a calendar month and each anniversary thereof.

“Purchases” shall mean General Purchases and Virgin Purchases, collectively.

“Rates and Fees” shall mean those Cardholder terms and conditions regarding rates and fees as are initially set forth in Schedule 3.2 (b), as amended from time to time pursuant to Section 3.2 (b).

“Service Standards” shall have the meaning set forth in Schedule 2.1 (h).

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“Term” shall mean the Initial Term, as defined in Schedule 7.1, plus any renewal terms agreed by the parties.

“United States” shall mean the contiguous 48 states, plus Alaska, Hawaii, the District of Columbia and Puerto Rico.

“Virgin Goods and/or Services” shall mean those goods and/or services sold at retail by Virgin through Virgin Sales Channels to the general public for individual, personal, family or household use.

“Virgin Mark” shall mean the trademarks, service marks, or trade names owned by or licensed (and capable of being sublicensed) to Virgin and designated by Virgin to Bank for use in connection with the Program as set forth in Schedule 1.2(b).

“Virgin Net Sales” shall mean Virgin Purchases, less credits or refunds for Virgin Goods and/or Services, calculated each Business Day.

“Virgin Purchase” shall mean a purchase of Virgin Goods and/or Services, including without limitation all applicable taxes and shipping costs, with a specific extension of credit by Bank to a Cardholder using an Account as provided for under this Agreement. A General Purchase is not included within this definition.

“Virgin Sales Channels” shall mean those certain sales channels through which Virgin sells Virgin Goods and/or Services during the Term, regardless of what name Virgin uses for such sales channels, including (as applicable) but not limited to: (i) locations which are owned and operated by Virgin or Virgin’s Affiliates or Virgin’s licensees or franchisees, including airplanes, airport lounges, check-in counters and kiosks and gates, and (ii) Virgin’s website.

B. Other Definitions. As used herein, terms defined in the introductory paragraph hereof and in other sections of this Agreement shall have such respective defined meanings. Defined terms stated in the singular shall include reference to the plural and vice versa. The terms “shall” and “will” have the identical meaning (i.e., that something is compulsory and certain), and the use of one versus the other is not to be interpreted as implying less certainty or a sense of possibility or choice.

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Schedule 1.2 (a)

Bank Marks

COMENITY CAPITAL BANK

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Schedule 1.2 (b)

Virgin Marks

Virgin America® word mark and trade name	U.S. Reg. No. 3541731
Elevate® word mark	U.S. Reg. No. 3998413

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Schedule 2.1 (f)

EV Process & File Transfer Process

Bank and Virgin to cooperate to develop mutually acceptable EV Process.

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Schedule 2.1 (g)

Approval Rates

Bank shall meet the Target Approval Rate for the Program in accordance with this Schedule 2.1 (g).

Bank shall calculate the Quarterly Approval Rate at the end of each Program quarter, beginning after Program month six (which shall measure the Quarterly Approval Rates for Program months seven through nine). The parties intend that each Program quarter Bank shall achieve the Target Approval Rate. In the event that Bank has a Below Benchmark Quarter, Bank shall have the right to cure in the immediately following Program quarter (meaning that such Program quarter is a Benchmark Quarter). If Bank has ***** consecutive Below Benchmark quarters, Bank shall pay to virgin ***** for each full percentage point the Quarterly Approval Rate falls below the Target Approval Rate for the applicable Program quarter. *****

Notwithstanding the foregoing, Virgin shall not have any remedies pursuant to this Schedule 2.1 (g) to the extent Bank’s failure to meet its obligations under this Schedule 2.1 (g) is caused by either or both of the following: (i) the negligent or willful actions of Virgin; and/or (ii) any changes implemented by Bank to comply with Applicable Law (including regulations and expectations of regulators).

Definitions applicable to this Schedule 2.1 (g):

“Below Benchmark Quarter” shall mean any Program quarter in which the Quarterly Approval Rate is less than the Target Approval Rate.

“Benchmark Quarter” shall mean a Program quarter in which the Quarterly Approval Rate is greater than or equal to the Target Approval Rate.

“Benchmark Applicant Rating” shall equal a FICO-equivalent* bureau score of ***** or higher.

* Bank currently uses a FICO-equivalent scoring model. If Bank changes to a different scoring model other than FICO-equivalent, Bank shall convert the non-FICO-equivalent score to a FICO-equivalent score, for all purposes where a FICO-equivalent score is referenced in this Schedule 2.1 (g).

“Quarterly Approval Rate” shall mean the amount, expressed as a percentage, which equals *****

“Target Approval Rate” shall mean ***** of Valid Applications approved:

“Valid Application” shall mean, for the purposes of this Schedule 2.1 (g), an application that is fully completed, submitted, and delivered to Bank, excluding: (i) Applications from Customers that do not achieve the Benchmark Applicant Rating; (ii) any application categorized as pending, as a duplicate, as being fraudulent, or as being incomplete; and / or (iii) any declined application due to compliance with Applicable Law. Additionally, the following prescreen applications will be excluded from the definition of Valid Application: (y) those prescreen applications for which Bank declines to make an offer of credit; and (z) those prescreen applications for which the Customer does not accept Bank’s offer of credit.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.1 (h)

Service Standards

Service Factor Category	Service Standards
Critical Service Factors
Telephone Service Factors:
1.      Telephone answering response time for new Accounts, authorizations, and customer service	1.      At least ***** of calls answered within *****
2.      Abandon rate for new Accounts, authorizations, and customer service	2.      ***** or less. *****
3.      First call resolution	3.      ***** of all calls result in no follow up contact by Cardholder regarding the same issue. Only applies to issues fully in control of Bank. ***** For purposes of measurement, no response to the survey shall be deemed a positive resolution.
New Account Service Factors:
4.      Application response time (exclusive of mail-in applications and those requiring a supplemental telephone call or additional credit agency investigation)	4.      *****
Member Service Factors:
5.      Response to written Applicant or Cardholder inquiries (paper/email)	5.      *****
Systems Availability Service Factor:
6.      Availability of Bank’s authorization systems	6.      *****
7.      Availability of Bank’s website	7.      *****
Other Service Factors
8.      Initial Credit Card production	8.      *****
9.      Replacement Credit Card production	9.      *****

Assumptions:

• Response time for application related inquiries relates to those Applicants which Bank has approved or declined. Applications which Bank is reviewing under special circumstances, such as a suspected fraudulent application, shall not be included in the measurement of the Standard.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

• Response times for authorization requests relates to those requests processed solely by Bank’s host. Authorization requests requiring external support such as additional credit bureau pulls are excluded.

Termination Right by Virgin:

Virgin may terminate the Agreement in accordance with Section 7.3(d) if Bank fails to perform any one of the same Service Standards in this Schedule 2.1 (h) for any *****, and such failure is not the result of an act of Virgin, or a result of a force majeure event specified in Section 8.6, provided that, after receipt of written notice from Virgin, Bank fails to perform such Service Standard again for *****. Notwithstanding the foregoing, Virgin may terminate the Agreement in accordance with Section 7.3(d) if Bank fails to perform any one of the same Service Standards in this Schedule 2.1 (h) for any *****, and such failure is not the result of an act of Virgin, or a result of a force majeure event specified in Section 8.6.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.1 (i)

Operating Committee

(a) Establishment of the Operating Committee. The parties hereby establish an operating committee (the “Operating Committee”) to perform the functions with respect to the Program as set forth herein and any other actions that, pursuant to any express provision of this Agreement, requires the Operating Committee’s action or as may be mutually agreed to by members of the Operating Committee.

(b) Composition. The Operating Committee shall consist of ***** members of whom half of which shall be designated by Virgin (the “Virgin Designees”) and the remaining half of which shall be designated by Bank (the “Bank Designees”). Each party’s designees shall include at all times at least one member of management. Each party may substitute its members from time to time, provided that each party shall provide the other party with as much prior notice of any such (temporary or permanent) substitution as is reasonably practicable under the circumstances. During the Term each party shall ensure the availability and participation of high-level representatives as necessary to fulfill its obligations in this Agreement.

(c) Functions. The functions of the Operating Committee shall include discussion and review of the following:

(i) marketing efforts and Marketing Fund usage (“Marketing Plan”);

(ii) the general performance of the Program, including issues such as system integration and the Elevate Rewards Program, and anticipated or actual change in applicable law;

(iii) Bank’s compliance with the Service Standards;

(iv) changes to the Rates and Fees (for discussion purposes only);

(v) disputes;

(vi) changes to Operating Procedures; and

(vii) any matters which either party believes to be material with respect to the ongoing administration and operation of the Program.

(d) Proceedings. Unless all Operating Committee members agree otherwise, the Operating Committee shall meet (telephonically or in person as agreed) not less frequently than ***** and not less than ***** shall be in person. The Operating Committee (and any subcommittee formed by it) shall determine the frequency, place (in the case of meetings in person) and agenda for its meetings, the manner in which meetings shall be called and all procedural matters relating to the conduct of meetings and the approval of matters thereafter not already specifically provided for herein. Either party may call a special meeting of the Operating Committee at any time or on reasonable prior notice in the event of a default by the other party under this Agreement. Any such special meeting shall be held at the location of the party that did not call the special meeting to order. A valid meeting shall consist of (i) no less than ***** designees, and (ii) at least ***** of each party. A valid vote (and any course of action based thereon) shall consist of votes cast by (i) no less than ***** designees, and (ii) an equal number of Virgin Designees and Bank Designees, respectively. A majority vote of all designees participating in a valid vote shall suffice for a matter to be considered approved or otherwise decided.

(e) Dispute Resolution. If the parties reach impasse on a matter that requires agreement, the matter shall be resolved as described in this subsection (e). Upon the written request of either party, such a matter shall be submitted to the Operating Committee for resolution. The Operating Committee

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding relating thereto. If the Operating Committee does not resolve the subject matter within ***** after the date of receipt by the other party of a request to submit the matter to the Operating Committee, then the matter shall be escalated to a senior executive officer of Virgin and a senior executive officer of Bank, for their review and resolution within ***** of receipt of the notice of escalation.

(f) Relationship Management. The parties agree that they will respectively provide the resources necessary to the effective execution of this Agreement and that, regardless of other commitments or obligations hereunder, Virgin and Bank each shall provide, at their own expense, a dedicated relationship manager whose primary job function is the support of the Program. The relationship managers shall have the requisite skills and empowerment to effectively manage the day to day operations of the Program.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.4 (a)

Virgin Marks on Cardholder Materials

Virgin Marks will appear on the following Cardholder materials:

- Advertising materials

- Acquisition materials (e.g., direct mail, brochures, etc.)

- Card package (envelope, benefits brochure, etc.)

- Monthly and Year End Card statements

- Fulfillment materials

- Renewal mailings

- Offerings/communications developed exclusively for Virgin Cardholders

Virgin Marks will not appear on the following Cardholder materials:

- Cash advance/balance transfer checks

- Customer service or legal communications (e.g., customer-merchant disputes, credit issues, overdue payments, etc.)

- Legal notifications (e.g., privacy policy notices)

- Card update information not unique to the Virgin Card (e.g., purchased goods insurance program)

- Offerings/communications not targeted solely to Virgin Cardholders

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.4(d)(ii)

Bank Standard Specifications for Forms

Bank shall provide to Virgin promptly following the execution of this Agreement

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.5 (a)

Marketing Promotions

Virgin and/or Bank (as applicable) will implement the following marketing promotions (which, in the case of the marketing promotions for which Virgin is responsible, shall be implemented by the Program Commencement Date unless otherwise specified below):

Online:

• Subject to the provisions of Section 2.1 (e), *****, Virgin will include the capabilities of real time prescreen on Virgin’s website, call center and at time of enrollment in the Elevate Rewards Program.

• Virgin will offer “warm transfer” capability from the Elevate service center(s) as mutually agreed upon by the parties, which may include appropriate incentives for Virgin call center employees, in Virgin’s sole discretion.

• Virgin will conduct email marketing campaigns for the Program at least ***** per marketable Member per Program Year.

• Virgin shall ensure that, at all times during the Term, the Program is prominently placed, in each case consistent with then-current industry best practices for such channels:

• On Virgin’s website, above the fold on the home page and payment page for on-line booking, with a link to a dedicated Program page describing Program benefits;

• On the mobile optimized view of Virgin website, with a link to apply for an Account within the pages;

• On Virgin’s social media platforms, with Program promotions and a link to apply for an Account will be included periodically.

Airport/In Air:

Virgin will, in each case consistent with then-current industry best practices for such channels:

• Promote the Program in flight by making at least one in flight announcement promoting the Program during each flight, which may be by flight attendants or via the onboard video system beginning no later than ***** after Program Commencement Date.

• Equip flight attendants with applications to provide to customers that request them.

• Include Program placement within the Red in-flight entertainment system *****

• Ensure that In-flight crews are offered training.

• Provide airport gate, ticketing and/or check in area signage promoting the Program, with applications available in lounges, subject to the approval of airport authorities.

Bank Originated:

• Virgin shall provide to Bank, access to full database of Elevate Rewards Program Members as provided in Section 2.6(b) for direct mail prescreening, on ***** basis, to be conducted as determined by the Operating Committee such direct mail to be limited to ***** per Member per Program Year.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

• Bank will fund, through the Marketing Fund, email, including prescreen emails, and on-line targeting and retargeting subject to the Operating Committee’s prior approval of such marketing initiatives.

• Other marketing initiatives to be funded by Bank through the Marketing Fund subject to the Operating Committee’s prior approval

• Bank will fund the cost of acquiring prospect information for up to ***** new-customer prospects

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.5(b)

Marketing Funds

Subject to the provisions of Section 2.5, Bank shall contribute Marketing Funds as follows:

First Program Year: *****, no less than ***** of which shall be used to support a strategy to “win-back” Members who were cardholders under Virgin’s former credit card programs as follows:

• ***** in direct mail and email campaigns funding

• ***** funding of digital display ad retargeting (including email retargeting)

Each Program Year thereafter: ***** on prior Program Year’s Net Sales, ***** of which shall be reserved for General Purchase marketing.

Launch Fund: Bank shall pay to Virgin ***** no later than ***** following the Effective Date, to be used by Virgin for launch expenses mutually agreed by Bank and Virgin, but with no less than ***** being dedicated to developing and implementing Virgin Sales Channels. The parties will endeavor in good faith to ensure that the launch fund is spent within ***** of the Program Commencement Date, but in the event it is not, the remaining funding shall remain available and be used consistently with the other Marketing Funds outlined in this schedule.

The parties agree and acknowledge that Marketing Funds shall not be used to offset either party’s expenses related to either party’s staff, including but not limited to salaries and travel expenses for either party’s staff.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.6

*****Master File Information

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

*****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.6(c)(i)

Securitization of Accounts

1. Bank shall have the right to “securitize” receivables generated by Accounts (which shall not include the underlying Accounts associated with such receivables) provided that the structure of such securitization does not adversely impact the purchase of the Accounts in accordance with Schedule 7.4.

2. Bank hereby agrees to indemnify and hold harmless Virgin and its respective officers, directors, employees and agents (each, an “indemnified party”), against any and all losses, claims, expenses, damages or liabilities, joint or several, to which such indemnified party may become subject to the Securities Act of 1933 or otherwise, as and when such losses, claims expenses, damages or liabilities are incurred insofar as such loss, claims, damages or liabilities (or actions in respect thereof) are based upon any untrue statement or alleged untrue statement of any material fact contained in any prospectus or registration statement relating to such securitization of receivables pursuant to this Agreement, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required by Applicable Law to be stated therein or necessary to make the statements therein not misleading. Bank will not be liable in any such case to the extent that any such actual loss, damage or liability arises out of or is based upon an untrue statement or a material fact made in any such prospectus or registration statement in reliance upon and in conformity with written information furnished to Bank by Virgin for inclusion therein.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.9(a)

Elevate Rewards Program

Virgin shall, at its sole expense, maintain and fund the Elevate Rewards Program. In addition, the parties agree as follows:

1. Unless otherwise agreed to by Bank, at no time during the Term will the Value Proposition of the Elevate Rewards Program for Cardholders be less than the value of the Elevate Rewards Program for non-Cardholders. Consequently, Virgin will offer the same or better Elevate Rewards Program tiers to Cardholders that it does for non-Cardholders.

2. At no time during the Term will Virgin permit Elevate Points or equivalent Virgin travel rewards earned based on customer spending to be equal or better than the Elevate Points or equivalent Virgin travel awards earned by Cardholders as part of the Value Proposition.

3. Virgin and Bank agree and acknowledge that Virgin may make changes to the Elevate Rewards Program and/or Value Proposition in the ordinary course of business so long as such changes preserve the perceived value of the Elevate Rewards Program and the Value Proposition to Cardholders and in any event such that the perceived value of the Elevate Rewards Program and the Value Proposition to Cardholders is equal to or greater than the MasterCard World and Visa Signature requirements regarding value from time to time. If after the first Program Year, and annually thereafter, Virgin elects to make changes to the Elevate Rewards Program and/or Value Proposition and the perceived current rewards value decreases below the MasterCard World and Visa Signature requirements, the Bank and Virgin shall discuss possible changes to the Elevate Rewards Program and/or Value Proposition that would offset such impact. If Bank and Virgin do not mutually agree upon a way to mitigate any such negative impact within *****, either Bank or Virgin may, in its sole and commercially reasonable discretion, terminate the Agreement upon ***** prior written notice. After such notice, and until such time as the Program is terminated, the Parties may make changes only to the elements in accordance with this Schedule 2.9 (a).

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.10

Program Value Proposition

Premium Card

The parties agree to work together, in good faith, to develop and launch a premium card product with a customer value proposition that supports an annual fee of *****. Said product will have premium card benefits as provided by the Card Network, accelerated point earning for certain category purchases, an acquisition sign-up bonus greater than that of the Base Card as well as other Virgin and Bank benefits as mutually agreed. The parties will conduct customer research and review competing offerings by other airline cobranded cards to develop the terms of a competitive premium card offering no later than the Program Commencement Date.

The parties will review options for implementing both a consumer and small business version of the premium card.

Platinum Card

• Annual Fee: ***** (paid by Cardholder)

• Visa Signature / MasterCard World benefits, if applicable (to be provided by Card Network)

• Elevate Points Earned for Purchases (to be provided by Virgin):

• *****Sign-Up Bonus of no less than ***** awarded if Cardholder makes ***** or more of General Purchases in the first ***** after Account opening [(to be used for miles/Elevate points or mutually agreed-upon bonus for activation)] (to be provided by Bank).

• ***** off a companion ticket every year (to be provided by Virgin)

• ***** every calendar year in which the Cardholder spends ***** (to be provided by Virgin)

• The parties will review options for implementing both a consumer and small business version of the platinum card

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 3.2 (b)

Summary of Rates and Fees

CONDITIONS	CURRENT TERMS
Annual Percentage Rate (APR)	*****
Annual Fee	Platinum Card: ***** Premium Card: *****
Penalty Rate	*****
Minimum Late Fee	*****
Minimum NSF Fee	*****
Cash Advance Rate	*****
Balance Transfer Fee	*****
Minimum Finance Charge	*****

*****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 3.6

Bank Reports

Frequency	Name	Description
*****	CORE PERFORMANCE METRICS	New Account processing: number submitted, duped, pending, activated and percentages.
*****	ACQUISITION PERFORMANCE (all by channel and by source code)	•    # of submitted applications •    # of approved accounts •    Approval rates
*****	ACQUISITION PERFORMANCE (all by channel and by source code)	•    Approval rates by Bureau Risk Scores •    Responder volumes by Bureau Risk Scores •    Initial line assignments by quintile •    Number of new accounts by card product and pricing tier
*****	CORE PERFORMANCE METRICS	•    # debit active accounts •    # statement active accounts •    # accounts ever actives •    Sales per debit active account •    Sales per open account •    # transactions/debit active (on and off Virgin) •    Average ticket size (on and off Virgin) •    Spending by MID and MCC •    Attrition rates ($ and # accounts) cumulative, voluntary, and involuntary
*****	DISBURSEMENT	•    Total portfolio sales •    Total portfolio sales returns •    New accounts qualifying for bounty •    Total new accounts •    # accounts earning new account bounty •    new account bounty points awarded •    Other “bonus” point awarded •    Total points awarded •    # cardholders transacting at Virgin in month •    Payments to Virgin attributed to cardholder spending •    Payments to Virgin for new accounts •    Payments to Virgin for acquisition bounty points •    Payments to Virgin for other “bonus” points awarded

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

*****	SERVICE STANDARDS	Actual performance by standard outlined in Schedule 2.1 in absolute levels and relative to required levels
*****	MARKETING	Marketing spend relative to budget by month and YTD with remaining annual forecast
*****	Marketing	Account number, number of Elevate points and YTD by type

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 3.9

Payment Obligations

Bank shall make the following payments to Virgin in connection with the Program:

A. ROYALTY ON NET SALES

On Net Sales, Bank shall pay to Company an amount (“Royalty”) equal to *****

B. BONUS POINTS

Unless otherwise mutually agreed, Bank shall pay Virgin ***** provided to Cardholders for new account acquisition premiums. Virgin covenants that it will not sell bonus miles, directly or indirectly, to any of its partners (other than Bank) for an equal or lower rate than ***** during the Term.

C. NEW ACCOUNT BOUNTIES

Premium Card:

• ***** per each new Account with respect to a Premium Card sourced through a Virgin Sales Channel, subject to the applicable Cardholder making at least ***** in General Purchases within the first ***** of Account opening.

• ***** per each new Account with respect to a Premium Card not sourced through a Virgin Sales Channel (i.e. a Bank-sourced Account), subject to the applicable Cardholder making a General Purchase ***** within the first ***** of Account opening.

Platinum Card:

• ***** per each new Account with respect to a Platinum Card sourced through a Virgin Sales Channel, subject to the applicable Cardholder making at least ***** in General Purchases within the first ***** of Account opening.

• ***** per each new Account with respect to a Platinum Card not sourced through a Virgin Sales Channel (i.e. a Bank-sourced Account), subject to the applicable Cardholder making a General Purchase in ***** within the first ***** of Account opening.

D. ANNUAL FEE SHARING

• No later than ***** after the end of each Program Year, Bank shall pay to Virgin ***** for each Premium Card Account on which the applicable Cardholder paid the full annual fee to Bank.

• No later than ***** after the end of each Program Year, Bank shall pay to Virgin ***** for each Platinum Card Account on which the applicable Cardholder paid the full annual fee to Bank.

E. PROFIT SHARE

Within ***** after the end of each Program Year, Bank shall pay to Virgin an amount equal to ***** of the Annual Cumulative Net Portfolio Yield for the just concluded Program Year that will be equal to *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

F. ANNUAL REVENUE GUARANTEE

Subject to Virgin’s fulfillment of its obligations pursuant to Section 2.6 (b) and Schedule 2.5 (a), then each Program Year during the Term, Bank shall ensure that, in the aggregate, the total payments made by Bank to Virgin pursuant to this Agreement during such Program Year, including all of the following: (i) Elevate Points and bonus miles purchased by Bank, including pursuant to Section A and B of this Schedule 3.9, (ii) new Account bounties pursuant to Section C of this Schedule 3.9, (iii) payments with respect to annual fees pursuant to Section D of this Schedule 3.9, and (iv) any Profit Share pursuant to Section E of this Schedule 3.9, shall equal no less than the amount for the applicable Program Year set forth in the table below (the “Annual Revenue Guarantee”):

*****

Within ***** after the Effective Date, Bank shall pay to Virgin ***** as a partial prepayment of the Program Year One Annual Revenue Guarantee, provided however, that if Virgin does not meet all obligations required to be completed on or before the Program Commencement Date set forth in Section 2.6 (b) and Schedule 2.5 (a), Virgin shall repay to Bank the full ***** prepayment until such obligations have been met (at which time the Bank shall repay such amount to Virgin). The remaining ***** of the Program Year One Annual Revenue Guarantee shall be paid upon the Program Commencement Date, provided that Virgin has fulfilled its obligations pursuant to Section 2.6 (b) and Schedule 2.5 (a) at such time. So long as Virgin continues to meet its obligations under Section 2.6 (b) and Schedule 2.5 (a), at the beginning of each Program Year thereafter Bank shall pay the above amounts to Virgin as a prepayment of the revenues expected to be contributed by Bank to Virgin in such Program Year. Notwithstanding anything herein to the contrary, Bank shall not be obligated to make any payments in connection with the (i) New Account Awards; (ii) Royalty; (iii) bonus miles, (iv) Profit Share; or (v) Annual Fee Rebates until the Annual Revenue Guarantee amount has been satisfied in such Program Year. For the avoidance of doubt, the Annual Revenue Guarantees shall apply to the specific Program Years listed and the Annual Revenue Guarantees are not to be construed as additive or cumulative in nature; provided that any “unearned” amount of any Annual Revenue Guarantee (as defined in Section 7.5(d)) will roll over into subsequent Program Years but shall not have any effect on Bank’s obligation to pay the full Annual Revenue Guarantee in subsequent Program Year. By way of example, if ***** of the Annual Revenue Guarantee for the first Program Year is “unearned”, Bank will pay the full ***** Annual Revenue Guarantee for the second Program Year but no additional payments will be made during Program Year two until the total of (i) the ***** Annual Revenue Guarantee for Program Year two plus (ii) the ***** unearned portion of the Annual Revenue Guarantee for Program Year one has been earned and applied. Bank’s obligation to make the Annual Revenue Guarantee shall cease if and when either party: (i) terminates this Agreement or (ii) notifies the other party of an intent to terminate the Agreement or that the notifying party has already terminated this Agreement.

G. NOTES

In the event changes to Applicable Law, or applicable Card Network Rules, including changes to Interchange Fees, have an actual, material, adverse economic impact on Bank, the parties shall discuss modifying Schedules 2.5(b), 2.10, 3.2(b), and/or 3.9 of the Agreement in consideration of the impact on Bank. However, in the event that the parties cannot mutually agree upon the type and/or amount of such modification(s) after no fewer than ***** of such good faith discussion, this shall be deemed a Bank Termination Event and Bank shall have the right to terminate this Agreement with ***** prior notice.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 7.1

Term and Expiration

Upon execution by authorized representatives of both parties, and unless terminated as provided herein, this Agreement shall become effective as of the Effective Date, remain in effect for ***** from the Program Commencement Date (the “Initial Term”). Notwithstanding the preceding sentence, in the event that Accounts Receivable equal less than ***** at the end of *****, Virgin shall have the option to allow the Agreement to expire as of ***** upon written notice to Bank, provided that such written notice must be received by Bank no more than ***** after the end of the *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 7.4

Purchase of Accounts

(a) Notwithstanding anything to the contrary in this Agreement, upon termination or expiration of this Agreement, Virgin or its designee will have the option to purchase the Accounts and all Accounts Receivable related thereto (the “Portfolio”), without recourse to Bank. The purchase price shall be fair market value*.

(b) No Deconversion during Down Period. Notwithstanding anything to the contrary provided elsewhere in this Schedule 9.5, Bank shall not be required to deconvert the Portfolio during the period ***** (“Down Period”). In the event that a conversion from Bank to Virgin or its designated purchaser cannot be completed on the closing date, Bank and Virgin, or its designated purchaser, shall negotiate in good faith, a comprehensive interim servicing agreement that allows for uninterrupted maintenance of the portfolio until such time as the conversion can be accomplished. The terms of such interim servicing agreement shall be standard and customary and include a reasonable and customary fee to Bank. In no event shall the deconversion be later than ***** after the closing date of the portfolio purchase.

(c) If Virgin (or its designee) exercises such right to purchase the Portfolio, the closing of such purchase shall take place not later than ***** after this Agreement’s termination or expiration, and shall include payment being made by wire transfer of immediately available funds to an account designated by Bank. Upon payment of the purchase price to Bank, Bank shall assign to Virgin (or its designee), without recourse, all of Bank’s right, title and interest in and to the Portfolio.

(d) In the case of a purchase, Virgin shall (at its and/or its designee’s expense, but not Bank’s) notify all Cardholders that Bank is no longer the owner of their Accounts. Virgin and Bank shall cooperate in facilitating the transition to Virgin or its designee, and Virgin shall ensure appropriate cooperation on the part of its designee. This subparagraph (d) shall not have the effect of transferring Bank’s legal and/or regulatory notification requirements to Virgin or its designee.

* Fair market value (FMV). If the parties are unable to agree on the fair market value of the Portfolio, the parties shall each select and retain, an Independent Appraiser within ***** following receipt of a written notice from the other party stating that such party does not believe that an agreement can be reached on valuation. The term “Independent Appraiser” shall mean a nationally recognized firm with documented and recognized standing and experience in valuing credit card portfolios similar to the Portfolio who has not been employed or retained by a party to the Agreement or any of their Affiliates within ***** of the date of selection, The two Independent Appraisers will issue a written opinion within ***** following their selection as to the fair market valuation (FMV) of the Portfolio. If the two Independent Appraisers’ valuations of the portfolio differ by less than *****, then both valuations shall be averaged and the result shall be the fair market valuation (FMV) of the Portfolio. If the two Independent Appraisers’ valuations of the portfolio differ by more than *****, then the two Independent Appraisers shall cooperate to select a third Independent Appraiser within ***** following issuance of their written FMV opinions. The third Independent Appraiser shall be provided the FMV opinions prepared by the two initial Independent Appraisers, and shall determine FMV by choosing one or the other of the appraisals which the third Independent Appraiser believes is closest to the true FMV within ***** following selection. Each party shall select, retain, and pay the full cost of its own Independent Appraiser, and the cost of the third Independent Appraiser, if necessary, shall be evenly shared by the parties. Each of Bank and Virgin (and/or its designee) shall provide such information to the two initial Independent Appraisers within ***** following their selection as is necessary to permit the two Independent Appraisers to provide a valuation(and those materials shall be available to the third Independent Appraiser, if necessary). There shall be no discovery permitted and no hearing or other proceedings in connection with the FMV determination; however, an Independent Appraiser may request of the parties information it believes would be useful in making the valuation determination.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

FIRST AMENDMENT TO THE CO-BRAND

CREDIT CARD PROGRAM AGREEMENT

This First Amendment to the Co-Brand Credit Card Program Agreement (“First Amendment”) is entered into as of this _31st_ this day of _July_, 2014 (“First Amendment Effective Date”) by and between VIRGIN AMERICA, INC., a Delaware corporation, with its principal office at 555 Airport Boulevard, Burlingame, CA 94402 (hereinafter being referred to as “Virgin”) and COMENITY CAPITAL BANK, with its principal offices located at 2795 East Cottonwood Parkway, Suite #100, Salt Lake City, UT 84121 (hereinafter referred to as “Bank”).

R E C I T A L S:

WHEREAS, Virgin and Bank entered into a Co-Brand Credit Card Program Agreement dated as of May 16, 2013 (the “Agreement”); and

WHEREAS, Virgin and Bank now desire to amend the Agreement to set forth the revised terms and conditions of the Program Value Proposition, to include, among other things, removal of the Status accelerator benefit from the Base Credit Card, as more particularly set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

1. Definitions; References. Each term used herein which is not defined herein shall have the meaning assigned to such term in the Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Agreement shall from and after the date hereof refer to the Agreement amended hereby.

2. New Section 3.5(f). The following text is hereby added to the Agreement as a new Section 3.5(f):

*****

3. Schedule 2.10; Program Value Proposition. Schedule 2.10; Program Value Proposition, is hereby deleted in its entirety and replaced with a revised Schedule 2.10 that is attached hereto and incorporated herein. Bank and Virgin will monitor activity and performance under the Program Value Proposition and may modify the terms and conditions of the Program Value Proposition as both parties mutually agree in writing.

4. Schedule 3.9, Section D, Annual Fee Sharing. Schedule 3.9, Section D, is hereby deleted in its entirety and replaced with the following: “D. ANNUAL FEE SHARING

• No later than ***** after the end of each Program Year, Bank and Virgin will meet to review the performance of the Premium Card Accounts to determine if such Accounts have at least matched, on average, the profit performance of the

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

aggregate Platinum Card Account portfolio as mutually agreed by the parties in their good faith business judgment. If the parties mutually agree that the average profit performance of such Premium Card Accounts have at least matched the average profit performance for Platinum Card Accounts for that Program Year, then Bank shall pay to Virgin ***** for each Premium Card Account on which the applicable Cardholder paid the full annual fee to Bank. If Bank and Virgin mutually agree that the Premium Card Accounts have not at least matched the profit performance of the Platinum Card Accounts for that Program Year, then the annual fee share amount to be paid from Bank to Virgin for each Premium Card Account on which the applicable Cardholder paid the full annual fee to Bank shall be *****

If the annual fee share amount paid is *****, then Virgin shall have the right ***** as outlined in Schedule 2.10. In the event that Virgin notifies Bank that it wishes to eliminate *****, in accordance with the terms and conditions set forth herein, the parties will work together in good faith to develop and implement new and/or additional benefit(s) to apply to the Premium Card Accounts (“New Benefits”), subject to mutually agreed changes, as applicable, to the economics of this Agreement. The New Benefits shall be researched and agreed upon by Bank and Virgin within ***** following Virgin’s notice to Bank of its intent to eliminate *****. If Virgin elects to cancel *****, Virgin and Bank shall remove ***** from all marketing materials and from all Premium Card Accounts as soon as practicable after the parties reach agreement on the New Benefits, but in no event ***** after the parties reach agreement on the New Benefits, unless otherwise mutually agreed in writing by the parties.

Notwithstanding the foregoing, should Virgin and Bank be unable to reach agreement on the New Benefits within ***** following Virgin’s notice to Bank of its intent to eliminate *****, then the New Benefits will default to a *****, unless otherwise mutually agreed in writing by the parties. Should this occur, Virgin and Bank shall remove ***** from all marketing materials and from all Premium Card Accounts within *****, unless otherwise mutually agreed in writing by the parties.

Ÿ No later than ***** after the end of each Program Year, Bank shall pay to Virgin ***** for each Platinum Card Account on which the applicable Cardholder paid the full annual fee to Bank.

The parties may revise the fee sharing amounts and/or the elements of the fee sharing calculation upon mutual written agreement.”

5. Governing Law. The governing law provisions of this First Amendment shall be the same as those of the Agreement.

6. Counterparts; Effectiveness. This First Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all of such counterparts shall together constitute one and the same instrument. The provisions included in this First Amendment shall be effective as of the First Amendment Effective Date set forth above.

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7. Entire Agreement. As hereby amended and supplemented, the Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed by their duly authorized officers.

VIRGIN AMERICA, INC.		COMENITY CAPITAL BANK
By:	/s/ Peter D. Hunt	By:	/s/ Ronald J. Ostler
Name:	Peter D. Hunt	Name:	Ronald J. Ostler
Title:	SVP & Chief Financial Officer	Title:	President

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

Schedule 2.10

Program Value Proposition

PREMIUM CARD

Annual Fee	*****
Sign-up Bonus	*****, provided Cardholder makes ***** in Purchases during ***** the Account is open
Earn Structure:	*****
Status Accelerator	***** earned after ***** spent per calendar year ***** will be awarded for every ***** spent, up to ***** per ***** spent). ***** that are earned in excess of published membership qualification thresholds *****
Companion Ticket	***** off one (1) companion ticket each year
Anciliary	***** for Cardholder and ***** for Virgin-operated flights
IFE Discount	***** for in-flight purchases made on RED (in the form of a statement credit)
Points Expiration Policy	*****
PLATINUM CARD
Annual Fee	*****
Sign-up Bonus	*****, provided Cardholder makes ***** in Purchases during ***** the Account is open
Earn Structure	*****
Companion Ticket	***** off one (1) companion ticket each year
Ancillary	***** for Cardholder and *****
IFE Discount	***** for in-flight purchases made on RED (In the form of a statement credit)
Points Expiration Policy	*****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.