-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MPvZg508CSf8Of12aleW8JT1N0EGuGFXZ8gAQmQ1jYLuhN1E+qeszYt69y48vYnl vpL8xSOkfmt3nlM/KkqOUg== 0001104659-04-036364.txt : 20041116 0001104659-04-036364.hdr.sgml : 20041116 20041116154118 ACCESSION NUMBER: 0001104659-04-036364 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 34 CONFORMED PERIOD OF REPORT: 20041109 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041116 DATE AS OF CHANGE: 20041116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JETBLUE AIRWAYS CORP CENTRAL INDEX KEY: 0001158463 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 870617894 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-49728 FILM NUMBER: 041149519 BUSINESS ADDRESS: STREET 1: 118-29 QUEENS BOULEVARD CITY: FOREST HILLS STATE: NY ZIP: 11375 BUSINESS PHONE: 7182867900 MAIL ADDRESS: STREET 1: 118-29 QUEENS BOULEVARD CITY: FOREST HILLS STATE: NY ZIP: 11375 8-K 1 a04-11378_48k.htm 8-K

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM 8-K

 

Current Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  November 9, 2004

 

JETBLUE AIRWAYS CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware

000-49728

87-0617894

(State or other jurisdiction
of incorporation)

(Commission file number)

(I.R.S. Employer
Identification No.)

 

118-29 Queens Boulevard, Forest Hills, New York  11375
(Address of principal executive offices)     (Zip Code)

 

(718) 709-3026
(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last year)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o                                    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o                                    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o                                    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o                                    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 



 

Item 1.01.  Entry into a Material Definitive Agreement.

 

On November 9, 2004, JetBlue Airways Corporation (the “Company”) entered into an underwriting agreement with Morgan Stanley & Co. Incorporated, as representative of the several underwriters named in the underwriting agreement, in connection with the public offer and sale of $498,237,000 aggregate amount of pass through certificates to be issued by three separate pass through trusts formed by the Company.  The pass through certificates and other securities of the Company were registered for offer and sale on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), by the Company’s Registration Statements on Form S-3, File Nos. 333-109546 and 333-119549.  The transactions contemplated by the underwriting agreement were completed on November 15, 2004.  For a more detailed description of the agreements and instruments entered into by the Company in connection with such transactions, see the disclosure under the captions “Summary,” “Description of the Certificates,” “Description of the Deposit Agreements,” Description of the Escrow Agreements,” “Description of the Liquidity Facilities,” “Description of the Policies and Policy Provider Agreement,” “Description of the Intercreditor Agreement,” “Description of the Equipment Notes” and “Plan of Distribution” contained in the Company Prospectus Supplement dated November 9, 2004 to the Prospectus dated November 4, 2004, and “Outline of Pass Through Trust Structure” and “Flow of Payments” contained in the Company’s Prospectus dated November 4, 2004, each of which have been filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act, which disclosure is hereby incorporated herein by reference.

 

This report is also being filed for the purpose of filing as exhibits the documents listed in Item 9.01 below, which are hereby incorporated by reference in the Company’s Registration Statement on Form S-3, File No. 333-119549.

 

Item 9.01.  Financial Statements and Exhibits.

 

The Exhibit Index included after the signature page of this report is hereby incorporated herein by reference.  Except as described in the following paragraph, the documents listed on the Exhibit Index are filed as exhibits with reference to the Company’s Registration Statement on Form S-3, File No. 333-119549.  The Registration Statement and the Final Prospectus Supplement dated November 9, 2004 to the Prospectus dated November 4, 2004 relate to the Company’s offering and sale of its Pass Through Certificates, Series 2004-2G-1, Series 2004-2G-2 and Series 2004-2C.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date:  November 16, 2004

JETBLUE AIRWAYS CORPORATION

 

 

 

By:

/s/ Holly Nelson

 

Holly Nelson

 

Vice President and Controller

 

(Principal Accounting Officer)

 

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EXHIBIT INDEX

 

Exhibit

 

Description

 

 

 

1

 

Underwriting Agreement, dated November 9, 2004, between JetBlue Airways Corporation and Morgan Stanley & Co. Incorporated, as representative of the Underwriters

 

 

 

4.1

 

Form of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Certificate Series 2004-2G-1-O, with attached form of Escrow Receipt

 

 

 

4.2

 

Form of Three-Month LIBOR plus 0.450% JetBlue Airways Pass Through Certificate Series 2004-2G-2-O, with attached form of Escrow Receipt

 

 

 

4.3

 

Form of Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through Certificate Series 2004-2C-O, with attached form of Escrow Receipt

 

 

 

4.4

 

Pass Through Trust Agreement, dated as of November 15, 2004, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-2G-1-O, Pass Through Certificates(1)

 

 

 

4.5

 

Revolving Credit Agreement (2004-2G-1), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-1 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

 

 

4.6

 

Revolving Credit Agreement (2004-2G-2), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-2 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

 

 

4.7

 

Revolving Credit Agreement (2004-2C), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2C Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

 

 

4.8

 

Deposit Agreement (Class G-1), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary

 

 

 

4.9

 

Deposit Agreement (Class G-2), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary

 

 

 

4.10

 

Deposit Agreement (Class C), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary

 

 

 

4.11

 

Escrow and Paying Agent Agreement (Class G-1), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent

 

 

 

4.12

 

Escrow and Paying Agent Agreement (Class G-2), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent

 

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Exhibit

 

Description

 

 

 

4.13

 

Escrow and Paying Agent Agreement (Class C), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2C-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent

 

 

 

4.14

 

ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O(2)

 

 

 

4.15

 

Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O

 

 

 

4.16

 

Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O

 

 

 

4.17

 

Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2C-O

 

 

 

4.18

 

Class G-1 Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent

 

 

 

4.19

 

Class G-2 Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent

 

 

 

4.20

 

Class C Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent

 

 

 

4.21

 

Insurance and Indemnity Agreement, dated as of November 15, 2004, among MBIA Insurance Corporation, as Policy Provider, JetBlue Airways Corporation and Wilmington Trust Company, as Subordination Agent and Trustee

 

 

 

4.22

 

MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated November 15, 2004, bearing Policy Number 45243 issued to Wilmington Trust Company, as Subordination Agent for the Class G-1 Certificates

 

 

 

4.23

 

MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated November 15, 2004, bearing Policy Number 45256 issued to Wilmington Trust Company, as Subordination Agent for the Class G-2 Certificates

 

 

 

4.24

 

Intercreditor Agreement, dated as of November 15, 2004, among Wilmington Trust Company, as Pass Through Trustee, Landesbank Baden-Württemberg, as Primary Liquidity Provider, Citibank, N.A., as Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent

 

 

 

4.25

 

Note Purchase Agreement, dated as of November 15, 2004, among JetBlue Airways Corporation, Wilmington Trust Company, in its separate capacities as Pass Through Trustee, as Subordination Agent, as Escrow Agent and as Paying Agent

 

 

 

4.26

 

Form of Trust Indenture and Mortgage between JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, as Mortgagee

 

 

 

4.27

 

Form of Participation Agreement among JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, in its separate capacities as Mortgagee, as Pass Through Trustee and as Subordination Agent

 

5



 

Exhibit

 

Description

 

 

 

23.1

 

Consent of Aircraft Information Services, Inc., dated November 15, 2004

 

 

 

23.2

 

Consent of AvSOLUTIONS, Inc., dated November 15, 2004

 

 

 

23.3

 

Consent of Morten Beyer & Agnew, dated November 15, 2004

 

 

 

99.1

 

Schedule 1

 

 

 

99.2

 

Schedule 2

 


(1)                        Documents substantially identical in all material respects to the document filed as Exhibit 4.4 hereto (which exhibit relates to formation of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-2G-1-O, Pass Through Certificates) have been entered into with respect to formation of each of the JetBlue Airways Pass Through Trusts, Series 2004-2G-2-O and Series 2004-2C-O and the issuance of each of Three-Month LIBOR plus 0.450% JetBlue Airways Pass Through Trust, Series 2004-2G-2-O and Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through Trust, Series 2004-2C-O.  Pursuant to Instruction 2 of Item 601 of Regulation S-K, Schedule 1, attached hereto as Exhibit 99.1, sets forth the terms by which such substantially identical documents differ from that filed as Exhibit 4.4 hereto.

(2)                        Documents substantially identical in all material respects to the document filed as Exhibit 4.14 (which exhibit relates to an above-cap liquidity facility provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O) have been entered into with respect to the above-cap liquidity facilities provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O and the JetBlue Airways Corporation Pass Through Trust 2004-2C-O.  Pursuant to Instruction 2 of Item 601 of Regulation S-K, Schedule 2, attached hereto as Exhibit 99.2, sets forth the terms by which such substantially identical documents differ from that filed as Exhibit 4.14 hereto.

 

6


EX-1 2 a04-11378_4ex1.htm EX-1

Exhibit 1

 

EXECUTION COPY

 

JETBLUE AIRWAYS CORPORATION

 

 

Pass Through Certificates

Series 2004-2

 

 

UNDERWRITING AGREEMENT

 

 

November 9, 2004

 



 

November 9, 2004

 

 

Morgan Stanley & Co. Incorporated

 

As representative of the several
Underwriters named in
Schedule I hereto

(the “Representative”)

 

c/o Morgan Stanley & Co. Incorporated

1585 Broadway

New York, New York 10036

 

Ladies and Gentlemen:

 

JetBlue Airways Corporation, a Delaware corporation (the “Company”), proposes that Wilmington Trust Company, a Delaware banking corporation, as pass through trustee (the “Trustee”) under the Class G-1 Trust, Class G-2 Trust and the Class C Trust (each as defined below), issue and sell to the several underwriters named in Schedule I hereto its pass through certificates in the aggregate face amounts and with the interest rates and final expected distribution dates set forth on Schedule II hereto (the “Offered Certificates”) on the terms and conditions stated herein.

 

The Offered Certificates will be issued pursuant to three separate pass through trust agreements, each dated as of November 15, 2004, between the Company and the Trustee (the “Original Pass Through Trust Agreements”).  The Original Pass Through Trust Agreements relate to the JetBlue Airways Corporation Pass Through Trust, Series 2004-2G-1-O (the “Class G-1 Trust”), the JetBlue Airways Corporation Pass Through Trust, Series 2004-2G-2-O (the “Class G-2 Trust”) and the JetBlue Airways Corporation Pass Through Trust, Series 2004-2C-O (the “Class C Trust” and together with the Class G-1 Trust and the Class G-2 Trust, the “Original Trusts”).

 

The cash proceeds of the offering of Offered Certificates by each Original Trust will be paid to Wilmington Trust Company, as escrow agent (the “Escrow Agent”), under separate Escrow and Paying Agent Agreements relating to each Original Trust among the Escrow Agent, the Underwriters, the relevant Trustee and Wilmington Trust Company, as paying agent (the “Paying Agent”), for the benefit of the holders of Offered Certificates issued by such Original Trust (each, an “Escrow Agreement”).  The Escrow Agent will deposit such cash proceeds (each, a “Deposit”) with HSH Nordbank, acting through its New York branch (the “Depositary”), in accordance with a Deposit Agreement relating to the respective Original Trust (the “Deposit Agreement”), and will withdraw Deposits upon request to allow the Trustee to purchase Equipment Notes (as defined in the Note Purchase Agreement referred to herein) from time to time pursuant to a Note Purchase Agreement to be dated as of the Issuance Date (the

 



 

Note Purchase Agreement”) among the Company, the Trustee of each of the Original Trusts and Wilmington Trust Company, as Subordination Agent (as hereinafter defined) and as Paying Agent and the Escrow Agent.  The Escrow Agent will issue receipts to be attached to each related Offered Certificate (“Escrow Receipts”) representing each holder’s fractional undivided interest in amounts deposited with the Escrow Agent and will pay to such holders through the related Paying Agent interest accrued on the Deposits and received by such Paying Agent pursuant to the related Deposit Agreement at a rate per annum equal to the interest rate applicable to the corresponding Offered Certificates.

 

On the earlier (the “Trust Transfer Date”) of (i) the first Business Day after February 28, 2006, or if later, the fifth Business Day after the Delivery Period Termination Date (as defined in the Note Purchase Agreement) and (ii) the fifth Business Day after the occurrence of a Triggering Event (as defined in the Intercreditor Agreement), each of the Original Trusts will transfer and assign all of its assets and rights to a newly-created successor trust with substantially identical terms except as described in the Prospectus Supplement (as hereinafter defined) (each, a “Successor Trust”) governed by three separate pass through trust agreements, each to be dated as of the Issuance Date, between the Company and the Trustee, with respect to each series of Offered Certificates (each, a “Successor Pass Through Trust Agreement”).  Each Offered Certificate outstanding on the Trust Transfer Date will represent the same interest in the relevant Successor Trust as such Offered Certificate represented in the relevant Original Trust.  Wilmington Trust Company initially will also act as trustee of the Successor Trusts.  As used herein, the terms “Trust” and “Pass Through Trust Agreement” shall mean “Original Trust” and “Original Pass Through Trust Agreement”, respectively; and on or after the Trust Transfer Date, such terms shall mean “Successor Trust” and “Successor Pass Through Trust Agreement”, respectively.

 

Certain amounts of interest payable on the Offered Certificates issued by each Trust will be entitled to the benefits of separate primary liquidity facilities and separate above-cap liquidity facilities.  Landesbank Baden-Württemberg (the “Primary Liquidity Provider”) will enter into a separate revolving credit agreement with respect to each Trust (each, a “Primary Liquidity Facility”), to be dated as of the Issuance Date for the benefit of the holders of the Offered Certificates issued by such Trust.  Citibank N.A. (the “Above-Cap Liquidity Provider”) will enter into a separate interest rate cap agreement with respect to each Trust (each, an “Above-Cap Liquidity Facility”), each to be dated as of the Issuance Date for the benefit of the holders of the Offered Certificates issued by such Trust.

 

The Primary Liquidity Provider, the Above-Cap Liquidity Provider, MBIA Insurance Corporation, as provider of the Policies referred to below (in such capacity, the “Policy Provider”), and the holders of the Offered Certificates will be entitled to the benefits, and subject to the terms, of an Intercreditor Agreement to be dated as of the Issuance Date (the “Intercreditor Agreement”) among the Trustee, Wilmington Trust Company, as subordination agent and trustee thereunder (the “Subordination Agent”), the Primary Liquidity Provider, the Above-Cap Liquidity Provider and the Policy Provider.

 

Payments of interest on the Offered Certificates issued by each of the Class G-1 Trust and the Class G-2 Trust will be supported by a financial guaranty insurance policy (each, a “Policy” and collectively, the “Policies”) issued by the Policy Provider to the extent the Primary

 

2



 

Liquidity Facilities and the Above-Cap Liquidity Facilities for such Offered Certificates and any funds contained in the related cash collateral accounts are not available for that purpose.  Each Policy will also support the payment of the outstanding balance of the Offered Certificates issued by the Class G-1 Trust or the Class G-2 Trust, as applicable, on the respective final legal distribution date for such Offered Certificate and under certain other circumstances described in the Intercreditor Agreement and the Policies.  The Policies will be issued pursuant to an insurance and indemnity agreement dated as of the Issuance Date (the “Policy Provider Agreement”) among the Policy Provider, the Company, the Trustees for the Class G-1 Trust and the Class G-2 Trust and the Subordination Agent.

 

As used herein, unless the context otherwise requires, the term “Underwriters” shall mean the firms named as Underwriters in Schedule I, and the term “you” shall mean Morgan Stanley & Co. Incorporated (“Morgan Stanley”).

 

Capitalized terms not otherwise defined in this Agreement shall have the meanings specified therefor in the Pass Through Trust Agreements, the Note Purchase Agreement or the Intercreditor Agreement, as applicable; provided that, as used in this Agreement, the term “Operative Documents” shall mean the Deposit Agreements, the Escrow Agreements, the Intercreditor Agreement, the Primary Liquidity Facilities, the Above-Cap Liquidity Facilities, the Policies, the Policy Provider Agreement, the Indemnification Agreement dated the date hereof (the “Indemnification Agreement”) among the Company, the Policy Provider and the Underwriters, the Pass Through Trust Agreements, the Note Purchase Agreement, the Fee Letter, the Policy Fee Letter, the Participation Agreements, the Indentures, the Assignment and Assumption Agreements and the Equipment Notes.

 

The Company has filed with the Securities and Exchange Commission (the “Commission”) two shelf registration statements on Form S-3: (i) Registration Statement No. 333-109546 (the “First Registration Statement”) and (ii) Registration Statement No. 333-119549 (the “Second Registration Statement”) constituting post-effective amendment no. 1 to the First Registration Statement, each relating to certain classes of securities (such registration statements, including the exhibits thereto and the documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are incorporated by reference therein, as amended at the date hereof, being herein referred to as the “Registration Statements”) and the offering thereof from time to time in accordance with Rule 415 of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”).  A prospectus supplement reflecting the terms of the Offered Certificates, the terms of the offering thereof and the other matters set forth therein, as further specified in Section 6(b) hereof, will be prepared and filed together with the base prospectus referred to below pursuant to Rule 424 under the Securities Act (such prospectus supplement, in the form first filed after the date hereof pursuant to Rule 424, being herein referred to as the “Prospectus Supplement” and any prospectus supplement relating to the Offered Certificates filed prior to the filing of the Prospectus Supplement being herein referred to as a “Preliminary Prospectus Supplement”).  The base prospectus, dated November 4, 2004, included in the Second Registration Statement relating to offerings of pass through certificates, as supplemented by the Prospectus Supplement, and including the documents incorporated by reference therein, is herein called the “Prospectus”, except that, if such base prospectus is

 

3



 

amended or supplemented on or prior to the date on which the Prospectus Supplement is first filed pursuant to Rule 424, the term “Prospectus” shall refer to such base prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement, in either case including the documents incorporated by reference therein.  Any reference herein to the terms “amendment” or “supplement” with respect to the Registration Statements, the Prospectus, any Preliminary Prospectus Supplement or any preliminary prospectus shall be deemed to refer to and include any documents filed with the Commission under the Exchange Act after the date hereof, the date the Prospectus is filed with the Commission, or the date of such Preliminary Prospectus Supplement or preliminary prospectus, as the case may be, and incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act.

 

1.                                       Representations and Warranties.  The Company represents and warrants to and agrees with each of the Underwriters that:

 

(a)                                  The Registration Statements have become effective; no stop order suspending the effectiveness of one or both of the Registration Statements is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.

 

(b)                                 (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act; (ii) each Registration Statement, when it originally became effective, did not contain and, as amended or supplemented, on the effective date of any post-effective amendment, if any, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Registration Statements and the Prospectus comply as to form and, as amended or supplemented, if applicable, will comply as to form in all material respects with the Securities Act; and (iv) the Prospectus, as of the date thereof, does not contain and, on the Issuance Date, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statements or the Prospectus, as amended or supplemented (if applicable), based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Prospectus or to statements or omissions in that part of the Registration Statements which shall constitute the Statement of Eligibility of the Trustee under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), on Form T-1; provided that the Company makes no representations or warranties as to the Policy Provider Information (as defined in the Indemnification Agreement).

 

(c)                                  The consolidated financial statements included or incorporated by reference in the Registration Statements present fairly the consolidated financial position of the Company and its consolidated subsidiaries as of the dates indicated and the consolidated results of operations and cash flows or changes in financial position of the Company and its consolidated subsidiaries for the periods specified.  Except as stated

 

4



 

therein, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.  The financial statement schedules, if any, included or incorporated by reference in the Registration Statements present fairly the information required to be stated therein.  The summary consolidated financial data included in the Prospectus present fairly the information shown therein in all material respects and have been compiled on a basis consistent with that of the audited consolidated financial statements included or incorporated by reference in the Registration Statements.

 

(d)                                 The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.

 

(e)                                  Each of the Company’s subsidiaries has been duly incorporated or organized, is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its incorporation or organization, has the power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or membership interests, as the case may be, of the Company’s subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.

 

(f)                                    This Agreement has been duly authorized, executed and delivered by the Company.

 

(g)                                 Each of the Operative Documents to which the Company is or is to be a party has been duly authorized by the Company and has been or (subject to the satisfaction of conditions precedent set forth in the Note Purchase Agreement and the Participation Agreements) will be duly executed and delivered by the Company on or prior to the Issuance Date or the applicable Closing Date (as defined in the Participation Agreements).

 

(h)                                 The Operative Documents to which the Company is, or is to be, a party are or will be substantially in the form heretofore supplied to you, and, when duly executed and delivered by the Company will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization,

 

5



 

moratorium and other similar laws relating to or affecting creditors’ rights generally and (B) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).  Each Pass Through Trust Agreement as executed is substantially in the form filed as an exhibit to the Registration Statements and has been duly qualified under the Trust Indenture Act.  The Offered Certificates, the Equipment Notes and the Operative Documents will conform in all material respects to the descriptions thereof in the Prospectus.

 

(i)                                     When executed, authenticated, issued and delivered in the manner provided for in the related Original Pass Through Trust Agreement and sold and paid for as provided in this Agreement, the Offered Certificates will be validly issued and will be entitled to the benefits of the related Original Pass Through Trust Agreement.  Based on applicable law as in effect on the date hereof, upon the execution and delivery of the Assignment and Assumption Agreements in accordance with the Original Pass Through Trust Agreements, the Offered Certificates will be validly outstanding under, and entitled to the benefits of, the related Successor Pass Through Trust Agreement.  When executed, authenticated, issued and delivered in the manner provided for in the related Escrow Agreement, the Escrow Receipts will be validly issued and will be entitled to the benefits of the related Escrow Agreement.

 

(j)                                     The Equipment Notes to be issued under each Indenture, when duly executed and delivered by the Company, and duly authenticated by the Indenture Trustee in accordance with the terms of such Indenture, will be duly issued under such Indenture and will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be subject to (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (B) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).  The holders of the Equipment Notes issued under each Indenture will be entitled to the benefits of such Indenture.

 

(k)                                  The execution and delivery by the Company of this Agreement and of the Operative Documents to which the Company is, or is to be, a party, the consummation by the Company of the transactions contemplated by this Agreement, by such Operative Documents, and compliance by the Company with the terms of this Agreement and such Operative Documents have been duly authorized by all necessary corporate action on the part of the Company and do not and will not result in any violation of the certificate of incorporation or by-laws of the Company and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than as specified in, or permitted by, the applicable Operative Document) upon any property or assets of the Company under, (A) any contract, indenture, mortgage, loan agreement, note, lease or other material agreement or other instrument to which the Company is a party or by which it may be bound or to which any of its properties may be subject or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company, any of its subsidiaries, or any of its properties (other than the securities or Blue Sky laws of

 

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the various states, as to which the Company makes no representation or warranty), except, in the case of either clause (A) or (B) above, for such conflicts, breaches, defaults or Liens that would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.  No consent, approval, authorization, order or license of, or filing with or notice to, any government, governmental instrumentality, regulatory body or authority or court, domestic or foreign, is required for the valid authorization, issuance and delivery of the Offered Certificates and the Equipment Notes, the valid authorization, execution, delivery and performance by the Company of its obligations under this Agreement, the Equipment Notes and the Operative Documents to which the Company is, or is to be, a party, or the consummation by the Company of the transactions contemplated by this Agreement, the Equipment Notes and such Operative Documents, except (i) such as are required under the Securities Act, the Exchange Act, the Trust Indenture Act and the securities or Blue Sky laws of the various states, (ii) filings or recordings with the Federal Aviation Administration (“FAA”) and under the Uniform Commercial Code as in effect in Delaware, which filings or recordings shall have been made or duly presented for filing with respect to each Aircraft and the related Equipment Notes on or prior to the Closing Date (as defined in the applicable Participation Agreement) for such Aircraft, (iii) filings, recordings, notices or other ministerial actions pursuant to any routine recordings, contractual or regulatory requirements applicable to the Company, (iv) filings, recordings, notices or other actions contemplated by the Operative Agreements in connection with the leasing or reregistration of the Aircraft and (v) filings, recordings, notices or other actions with respect to each Aircraft, all of which have either been, or will be, completed on or prior to the Closing Date (as defined in the applicable Participation Agreement) relating to such Aircraft and will be in full force and effect on such Closing Date.

 

(l)                                     There has not occurred any material adverse change, or any development reasonably likely to involve a material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).

 

(m)                               There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statements or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statements or the Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed as required.

 

(n)                                 Each preliminary prospectus filed as part of the Registration Statements as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.

 

(o)                                 Neither the Company nor any Original Trust is, nor (based on applicable law as in affect on the date hereof) will any Successor Trust be as of the execution and

 

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delivery of the related Assignment and Assumption Agreement in accordance with the related Original Pass Through Trust Agreement, an “investment company”, within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”); and after giving effect to the offering and sale of the Offered Certificates and the application of the proceeds thereof as described in the Prospectus, none of the Original Trusts will be, nor (based on applicable law as in effect on the date hereof) will any Successor Trust be as of the execution and delivery of the related Assignment and Assumption Agreement in accordance with the related Original Pass Through Trust Agreement, nor will the escrow arrangements relating to the Trusts contemplated by the respective Escrow Agreements result in the creation of, an “investment company”, as defined in the Investment Company Act.

 

(p)                                 The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their businesses, and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where any such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.

 

(q)                                 To the knowledge of the Company, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.

 

(r)                                    Subsequent to the respective dates as of which information is given in the Registration Statements and the Prospectus, (i) neither the Company nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent, or entered into any material transaction, in each case, not in the ordinary course of business or as described in or contemplated by the Prospectus (including, without limitation, aircraft acquisitions or financing so described in or contemplated by the Prospectus); (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock (other than repurchases of unvested shares of the Company’s capital stock pursuant to its equity incentive plans); (iii) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company except in each case as described in or contemplated by the Prospectus (including, without limitation, aircraft financing so described in or contemplated by the Prospectus); and (iv) there has been no prohibition or suspension of the operation of the Company’s aircraft, including as a result of action taken by the FAA or the Department of Transportation.

 

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(s)                                  Each of the Company and its subsidiaries has good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by it which is material to the business of the Company and its subsidiaries, in each case free and clear of all Liens and defects except Liens on aircraft and engines of the Company (provided that in the case of the Aircraft delivered on or prior to the Issuance Date, only such liens as are permitted by the Operative Documents) and such as are described in or contemplated by the Prospectus or such as do not materially affect the value of such property or do not interfere with the use made and proposed to be made of such property by the Company or its subsidiaries; and any real property and buildings held under lease by the Company or any of its subsidiaries are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or its subsidiaries, in each case except as described in or contemplated by the Prospectus.

 

(t)                                    (i) Each of the Company and its subsidiaries possesses such permits, licenses, approvals, consents and other authorizations (collectively “Government Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies, including the Department of Transportation, the FAA or the Federal Communications Commission necessary to conduct the business now operated by it; (ii) each of the Company and its subsidiaries is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; (iii) all of the Government Licenses are valid and in full force, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and (iv) the Company has not received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, is reasonably likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole.

 

(u)                                 Except as described in or contemplated by the Prospectus, no material labor dispute with the employees of the Company or its subsidiaries exists or, to the knowledge of the Company, is imminent; and the Company is not aware, but without any independent investigation or inquiry, of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could result in any material adverse change in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole.

 

(v)                                 The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are customary in the businesses in which it is engaged; provided, that the Company currently maintains war risk insurance on its aircraft under the FAA’s insurance program authorized under 49 U.S.C. § 44301 et seq. (“War Risk Insurance”); the Company has not been refused any insurance coverage sought or applied other than in connection with instances where the Company

 

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was seeking to obtain insurance coverage at more attractive rates; and, other than with respect to War Risk Insurance coverage, the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the  Company and its subsidiaries, taken as a whole, except as described in or contemplated by the Prospectus.

 

(w)                               The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations in all material respects and (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability.

 

(x)                                   The Company (i) is an “air carrier” within the meaning of 49 U.S.C. Section 40102(a); (ii) holds an air carrier operating certificate issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49 of the United States Code for aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of cargo; and (iii) is a “citizen of the United States” as defined in 49 U.S.C. Section 401102.

 

(y)                                 Ernst & Young LLP, who reported on the annual consolidated financial statements of the Company incorporated by reference in the Registration Statements and the Prospectus, are independent accountants as required by the Securities Act.

 

2.                                       Agreements to Sell and Purchase.  Subject to the terms and conditions set forth herein and in Schedule III, and in reliance upon the representations and warranties herein contained, the Company agrees to cause the Trustee to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Trustee, at a purchase price of 100% of the face amount thereof, the aggregate face amount of Offered Certificates set forth opposite the name of such Underwriter in Schedule I.  Concurrently with the issuance of the Offered Certificates, the Escrow Agent shall issue and deliver to the relevant Trustee the Escrow Receipts in accordance with the terms of the relevant Escrow Agreements, which Escrow Receipts shall be attached to the related Offered Certificates.

 

The Company will pay to Morgan Stanley at the Issuance Date (i) for the accounts of the Underwriters any fee, commission or other compensation that is specified in Schedule III hereto, and (ii) the structuring fee that is specified in Schedule III.  Such payment will be made by federal funds wire transfer or other immediately available funds.

 

3.                                       Terms of Public Offering.  The Company is advised by you that the Underwriters propose to make a public offering of their respective face amount of the Offered Certificates on the terms to be set forth in the Prospectus, as soon after the Second Registration Statement and this Agreement become effective as in your judgment is advisable.

 

4.                                       Payment and Delivery.    Delivery of and payment for the Offered Certificates (with attached Escrow Receipts) shall be made at the offices of Vedder, Price, Kaufman & Kammholz, P.C., 805 Third Avenue, New York, New York 10022 at 9:00 A.M. on November

 

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15, 2004 or on such other date, time and place as may be agreed upon by the Company and you (such date and time of delivery and payment for the Offered Certificates being herein called the “Issuance Date”).  Delivery of the Offered Certificates (with attached Escrow Receipts) issued by each Trust shall be made to your account at The Depository Trust Company for the respective accounts of the several Underwriters against payment by the Underwriters by wire transfer of immediately available funds to the Depositary and the Company.  Upon delivery, the Offered Certificates shall be registered in the name of Cede & Co. or in such other names and in such denominations as you may request in writing.

 

The Company agrees to have one or more global certificates representing the Offered Certificates of each Trust available for inspection and checking by you in New York, New York not later than one full business day prior to the Issuance Date.

 

5.                                       Conditions to Obligations.  The obligations of the Company to cause the Trustee to sell the Offered Certificates to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Offered Certificates on the Issuance Date are subject to the following conditions:

 

(a)                                  Subsequent to the execution and delivery of this Agreement and prior to the Issuance Date:

 

(i)                                     there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s or MBIA Insurance Corporation’s securities, including the Offered Certificates, by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;

 

(ii)                                  each of the Operative Documents (other than the Indentures, Participation Agreements and Equipment Notes relating to any Aircraft to be delivered after the Issuance Date and expected to be financed with the proceeds of the issuance and sale of the Offered Certificates) shall have been duly executed and delivered by each of the parties thereto; and

 

(iii)                               there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, or MBIA Insurance Corporation from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Certificates on the terms and in the manner contemplated in the Prospectus.

 

(b)                                 The Underwriters shall have received on the Issuance Date a certificate, dated the Issuance Date and signed by an executive officer of the Company, to the effect set forth in Subsections 5(a)(i) above and to the effect that: (i) the representations and

 

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warranties of the Company contained in this Agreement are true and correct as of the Issuance Date (except to the extent that they relate solely to an earlier or later date, in which case they shall be true and correct as of such earlier or later date), (ii) the Company has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Issuance Date, and (iii) the representations and warranties of the Company contained in each of the Operative Documents to which it is a party and executed by the Company on or before the Issuance Date shall be true and correct as of the Issuance Date (except to the extent that they relate solely to an earlier or later date, in which case they shall be true and correct as of such earlier or later date).  The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.

 

(c)                                  On the Issuance Date, you shall have received an opinion of each of Nixon Peabody LLP, outside counsel for the Company, and Vedder Price, Kaufman & Kammholz, P.C., special counsel for the Company, each dated the Issuance Date and in form and substance reasonably satisfactory to you and counsel for the Underwriters, substantially to the effect set forth in Exhibits A-1 and A-2 hereto, respectively.

 

(d)                                 On the Issuance Date, you shall have received an opinion of James G. Hnat, Vice President & General Counsel of the Company, dated the Issuance Date, and in form and substance reasonably satisfactory to you and counsel for the Underwriters substantially to the effect set forth in Exhibit B hereto.

 

(e)                                  On the Issuance Date, you shall have received an opinion of Morris, James, Hitchens & Williams LLP, counsel for Wilmington Trust Company, individually and as Trustee, Subordination Agent, Paying Agent, and Escrow Agent, dated the Issuance Date and in form and substance reasonably satisfactory to you and counsel for the Underwriters, substantially to the effect as set forth in Exhibit C hereto.

 

(f)                                    On the Issuance Date, you shall have received an opinion of Milbank, Tweed, Hadley & McCloy LLP, special counsel for the Primary Liquidity Provider, and an opinion of in-house counsel for the Primary Liquidity Provider, each dated the Issuance Date and in form and substance reasonably satisfactory to you and counsel for the Underwriters, substantially to the effect as set forth in Exhibits D-1 and D-2 hereto, respectively.

 

(g)                                 On the Issuance Date, you shall have received an opinion of Pillsbury Winthrop LLP, special counsel for the Above-Cap Liquidity Provider, and opinions of in-house counsel for the Above-Cap Liquidity Provider, respectively, each dated the Issuance Date, in form and substance reasonably satisfactory to you and counsel to the Underwriters, substantially to the effect set forth in Exhibits E-1 and E-2 hereto, respectively.

 

(h)                                 On the Issuance Date, you shall have received an opinion of Simpson Thacher & Bartlett LLP, special counsel for the Depositary, and an opinion of German  in-house counsel for the Depositary and Jon D. Karnofsky, General Counsel of the New

 

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York Branch of the Depositary, each dated the Issuance Date and in form and substance reasonably satisfactory to you and counsel for the Underwriters, substantially to the effect set forth in Exhibits F-1, F-2 and F-3 hereto, respectively.

 

(i)                                     On the Issuance Date, you shall have received an opinion of Latham & Watkins, special counsel for the Policy Provider, and an opinion of the General Counsel of the Policy Provider, each dated the Issuance Date and in form and substance reasonably satisfactory to you and counsel for the Underwriters, substantially to the effect set forth in Exhibits G-1 and G-2, respectively.

 

(j)                                     On the Issuance Date, you shall have received an opinion of Shearman & Sterling LLP, special counsel for the Underwriters, dated the Issuance Date, with respect to the issuance and sale of the Offered Certificates, the Registration Statements, the Prospectus and other related matters as the Underwriters may reasonably require.

 

(k)                                  The Underwriters shall have received, on each of the date hereof and the Issuance Date, a letter dated the date hereof or the Issuance Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements for the years ended December 31, 2003, 2002 and 2001 and certain financial information contained in or incorporated by reference into the Registration Statements and the Prospectus; provided that the letter delivered on the Issuance Date shall use a “cut-off date” not earlier than the date hereof.

 

(l)                                     The Company shall have furnished to you and to counsel for the Underwriters, in form and substance satisfactory to you and to them, such other documents, certificates and opinions as such counsel may reasonably request in order to pass upon the matters referred to in Section 5(j) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.

 

(m)                               Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the Issuance Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

 

(n)                                 On the Issuance Date, the Offered Certificates shall: (i) in the case of the Offered Certificates of the Class G-1 Trust and Class G-2 Trust, be rated “AAA” and, in the case of the Offered Certificates of the Class C Trust, be rated  “BB+” by Standard & Poor’s Ratings Service; and (ii) in the case of the Offered Certificates of the Class G-1 Trust and Class G-2 Trust, be rated  “Aaa” and, in the case of the Offered Certificates of the Class C Trust, be rated “Ba1” by Moody’s Investors Service, Inc.

 

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The Company agrees to furnish, promptly after each Closing Date (as defined in each Participation Agreement), to the Underwriters a copy of each opinion required to be delivered under the applicable Participation Agreement addressed to the Underwriters and of such other documents furnished in connection with the fulfillment of the conditions precedent therein as the Underwriters or counsel for the Underwriters may reasonably request.

 

If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by you on notice to the Company at any time prior to the Issuance Date and such termination shall be without liability of any party to any other party, except as provided in Section 6.  Notwithstanding any such termination, the provisions of Section 7 shall remain in effect.

 

6.                                       Covenants of the Company.  In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:

 

(a)                                  To furnish to you, without charge, five signed copies of the Registration Statements (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statements (each without exhibits thereto) and to furnish to you in New York City, without charge, prior to 4:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statements as you may reasonably request.

 

(b)                                 Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the Securities Act and which sets forth the face amount of the Offered Certificates and their terms not otherwise specified in the base prospectus relating to all offerings of pass through certificates under the Registration Statements, the name of each Underwriter participating in the offering and the face amount of the Offered Certificates that each such Underwriter severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Certificates.  The Company will promptly transmit copies of the Prospectus Supplement and the Prospectus to the Commission for filing pursuant to Rule 424 under the Securities Act.

 

(c)                                  During the period when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act, the Company will promptly advise you of (i) the effectiveness of any amendment to the Registration Statements, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) any request by the Commission for any amendment of the Registration Statements or any amendment or supplement to the Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statements or the institution or threatening of any proceeding for that purpose, and (v) the

 

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receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.  The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the withdrawal thereof.

 

(d)                                 If, at any time when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act, the Company promptly will prepare and file with the Commission, subject to paragraph (e) of this Section 6, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.  Neither your consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.

 

(e)                                  At any time when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act, the Company will give you notice of its intention to file any amendment to the Registration Statements or any amendment or supplement to the Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement in a form to which you shall reasonably object.

 

(f)                                    The Company has furnished or will furnish to you and your counsel, without charge, conformed copies of the Registration Statements as originally filed and of all amendments thereto, whether filed before or after such Registration Statements originally became effective (including exhibits thereto and the documents incorporated therein by reference) and, so long as delivery of a prospectus by an underwriter or dealer may be required by the Securities Act, as many copies of each preliminary prospectus, the Prospectus and any amendments thereof and supplements thereto as you may reasonably request.

 

(g)                                 The Company will take such actions as you may request to qualify the Offered Certificates for sale under the laws of such jurisdictions as you may reasonably request and will maintain such qualifications in effect so long as required for the distribution of such Offered Certificates.  The Company, however, shall not be obligated to qualify as a foreign corporation or file any general consent to service of process under the laws of any such jurisdiction or subject itself to taxation as doing business in any such jurisdiction.

 

(h)                                 During the period when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act and the Securities Act Regulations, the Company will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act.

 

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(i)                                     The Company will make generally available to its security holders, in each case as soon as practicable, but not later than 45 days after the close of the period covered thereby (90 days in case the period covered corresponds to a fiscal year of the Company), earnings statements of the Company, which will comply as to form with the provisions of Rule 158 under the Securities Act.

 

(j)                                     Between the date of this Agreement and the Issuance Date, the Company will not, without your prior consent, offer, sell or enter into any agreement to sell any public debt securities registered under the Securities Act (other than the Offered Certificates) or any debt securities which may be sold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A under the Securities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act.

 

(k)                                  Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Offered Certificates under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statements, any preliminary prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Certificates to the Underwriters, including any transfer or other taxes payable thereon, (iii) the printing or processing and distribution of this Agreement, the Offered Certificates, the Operative Documents, the Underwriters’ Questionnaire, any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Certificates under state law and all expenses in connection with the qualification of the Offered Certificates for offer and sale under state law as provided in Section 6(g), including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) the fees and expenses of the Trustee, the Loan Trustees, the Subordination Agent, the Primary Liquidity Provider, the Above-Cap Liquidity Provider, the Depositary, the Escrow Agent, the Paying Agent, and the Policy Provider, including the reasonable fees and disbursements of their respective counsel, in connection with the Offered Certificates and the Operative Documents, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Offered Certificates by the National Association of Securities Dealers, Inc., (vi) any fees charged by rating agencies for rating the Offered Certificates (including annual surveillance fees related to the Offered Certificates as long as they are outstanding), (vii)  all fees and expenses relating to appraisals of the Aircraft, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Certificates, including, without limitation, expenses associated with the production of

 

16



 

road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and such proportion of the cost of any aircraft chartered in connection with the road show as shall be agreed upon separately by the Company and the Representative (it being understood that the Underwriters shall be responsible for paying travel and lodging expenses of the Representative and such proportion of the cost of any aircraft chartered in connection with the road show and any ground transportation used by the Representative in connection with the road show as shall be so separately agreed upon), and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.  The reasonable fees and disbursements of counsel to the Underwriters will be paid as shall be agreed upon separately by the Company and the Representative.  It is understood, however, that except as provided in this Section, Section 7 and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses and any advertising expenses connected with any offers they may make.

 

7.                                       Indemnity and Contribution.  (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statements or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission (x) based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein, (y) in the Policy Provider Information or (z) in that part of the Registration Statements which shall constitute the Statement of Eligibility of the Trustee under the Trust Indenture Act on Form T-1; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Offered Certificates, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Offered Certificates to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the Company with Section 6(a) hereof.

 

17



 

(b)                                 Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statements and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statements, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.

 

(c)                                  In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.  Such firm shall be designated in writing by Morgan Stanley in the case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b).  The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional

 

18



 

release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

 

(d)                                 To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Offered Certificates or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Offered Certificates shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Offered Certificates (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate face amount of the Offered Certificates.  The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective face amount of Offered Certificates they have purchased hereunder, and not joint.

 

(e)                                  The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d).  The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Certificates underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be

 

19



 

entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

(f)                                    The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Offered Certificates.

 

8.                                       Termination.  The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Issuance Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or The Nasdaq National Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by either Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of Morgan Stanley, on behalf of the Underwriters, is material and adverse and which singly or together with any other such event specified in this clause (v), makes it, in the judgment of Morgan Stanley, on behalf of the Underwriters, impracticable to proceed with the offer, sale or delivery of the Offered Certificates on the terms and in the manner contemplated in the Prospectus.

 

9.                                       Effectiveness; Defaulting Underwriters.  This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

 

If, on the Issuance Date any one or more of the Underwriters shall fail or refuse to purchase Offered Certificates that it has or they have agreed to purchase hereunder on such date, and the aggregate face amount of Offered Certificates which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate face amount of the Offered Certificates to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the face amount of Offered Certificates set forth opposite their respective names in Schedule I bears to the aggregate face amount of Offered Certificates set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Offered Certificates which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate face amount of Offered Certificates that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 9 by an amount in excess of one-ninth of such aggregate face amount of Offered Certificates without the written consent of such Underwriter.  If, on the Issuance Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered Certificates and the aggregate face amount of Offered Certificates with respect to which such default occurs is more than one-tenth of the aggregate

 

20



 

face amount of Offered Certificates to be purchased, and arrangements satisfactory to you and the Company for the purchase of such Offered Certificates are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company.  In any such case either you or the Company shall have the right to postpone the Issuance Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statements and in the Prospectus or in any other documents or arrangements may be effected.  Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

 

If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the reasonable fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.

 

10.                                 Counterparts.  This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

11.                                 Applicable Law.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

 

12.                                 Headings.  The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

 

21



 

 

Very truly yours,

 

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

/s/ JOHN HARVEY

 

 

 

Name: John Harvey

 

 

 

Title:

VP Corporate Finance and

 

 

 

 

Treasurer

 

 

 

 

 

Accepted as of the date hereof

 

 

 

MORGAN STANLEY & CO. INCORPORATED

 

 

 

Acting on its own behalf
and on behalf of the
several Underwriters named
in Schedule I hereto.

 

 

 

 

 

By: MORGAN STANLEY & CO. INCORPORATED

 

 

 

 

 

By:

/s/ MICHAEL FUSCO

 

 

 

Name:

 Michael Fusco

 

 

Title:

Executive Director

 

 

22



 

SCHEDULE I

 

Underwriter

 

Face amount
Of Class G-1
Certificates

 

Face amount
Of Class G-2
Certificates

 

Face amount
Of Class C
Certificates

 

Morgan Stanley & Co. Incorporated

 

$

44,189,000

 

$

46,356,000

 

$

34,018,000

 

Citigroup Global Markets Inc.

 

44,188,000

 

46,354,000

 

34,016,000

 

HSBC Securities (USA) Inc.

 

44,188,000

 

46,354,000

 

34,016,000

 

J.P. Morgan Securities Inc.

 

44,188,000

 

46,354,000

 

34,016,000

 

Total

 

$

176,753,000

 

$

185,418,000

 

$

136,066,000

 

 

23



 

SCHEDULE II

 

Pass Through Certificates, Series 2004-2

 

Pass Through
Certificate
Designation

 

Face
Amount

 

Interest
Rate

 

Final Expected
Distribution
Date

 

2004-2G-1

 

$

176,753,000

 

USD Three-Month LIBOR plus 0.375%

 

August 15, 2016

 

2004-2G-2

 

$

185,418,000

 

USD Three-Month LIBOR plus 0.450%

 

November 15, 2016

 

2004-2C

 

$

136,066,000

 

USD Three-Month LIBOR plus 3.100%

 

November 15, 2008

 

 

24



 

SCHEDULE III

 

Underwriting fees, discounts, commissions or other compensation to Morgan Stanley:

 

(i) for the account of the Underwriters

 

$

3,736,777.50

 

(ii) for the structuring fee

 

$

622,796.25

 

 

25


EX-4.1 3 a04-11378_4ex4d1.htm EX-4.1

Exhibit 4.1

 

REGISTERED

No.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.

 

BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.  THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

 



 

GLOBAL CERTIFICATE

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2G-1-O

 

JetBlue Airways

Pass Through Certificate,

Series 2004-2G-1-O

 

Final Legal Distribution Date:                        , 20    

 

evidencing a fractional undivided interest in a trust, the property of which includes certain equipment notes each secured by an Aircraft owned by JetBlue Airways Corporation

 

having a face amount of $[                        ] representing [                        ]% of the Trust per $1,000 face amount

 

THIS CERTIFIES THAT                               , for value received, is the registered owner of a Fractional Undivided Interest having a face amount of $[                        ] (                                                                                       dollars) in the JetBlue Airways Pass Through Trust, Series 2004-2G-1-O (the “Trust”) created pursuant to a Pass Through Trust Agreement, dated as of November 15, 2004 (the “Agreement”), between Wilmington Trust Company (the “Trustee”) and JetBlue Airways Corporation, a corporation incorporated under Delaware law (the “Company”), a summary of certain of the pertinent provisions of which is set forth below.  To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement.  This Certificate is one of the duly authorized Certificates designated as “JetBlue Airways Pass Through Certificates, Series 2004-2G-1-O” (herein called the “Certificates”).  This Certificate is issued under and is subject to the terms, provisions, and conditions of the Agreement.  By virtue of its acceptance hereof the Certificateholder of this Certificate assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement.  The property of the Trust includes an interest in certain Equipment Notes and all rights of the Trust to receive payments under the Intercreditor Agreement, the Policy and any Liquidity Facility (the “Trust Property”).  Each issue of the Equipment Notes is secured by, among other things, a security interest in the Aircraft owned by the Company.

 

The Certificates represent fractional undivided interests in the Trust and the Trust Property, and have no rights, benefits or interest in respect of any assets or property other than the Trust Property.

 

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from and to the extent of funds then available to the Trustee, there will be distributed on each (i) February 15, May 15, August 15 and November 15 and (ii) in the case of any payment of principal or interest on, or with respect to, any Equipment Note received by the Subordination Agent after the date on which such payment is scheduled to be made, but within ten Business Days of such scheduled payment date, the date of receipt of such payment by the Trustee if received by noon and if later, the next Business Day (each a “Regular Distribution Date”), commencing on February 15, 2005, to the Person in whose name this Certificate is registered at the close of business on the Record Date immediately preceding the Regular

 



 

Distribution Date, an amount in respect of the Scheduled Payments due on such Regular Distribution Date on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments.  Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received.  If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date.  The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

 

The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any of their affiliates.  The Certificates are limited in right or payment, all as more specifically set forth on the face hereof and in the Agreement.  All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement.  Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement.  This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.  A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

 

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust.  Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate.  The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

 

As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, in the Borough of Manhattan, the City of New York,

 



 

duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

 

Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

Under certain circumstances set forth in Section 11.01 of the Agreement, all of the Trustee’s right, title and interest to the Trust Property may be assigned, transferred and delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption Agreement.  Upon the effectiveness of such Assignment and Assumption Agreement (the “Transfer”), the Trust shall be terminated, the Certificateholders shall receive beneficial interests in the Related Trust in exchange for their interests in the Trust equal to their respective beneficial interests in the Trust, the Certificates representing Fractional Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related Pass Through Trust Agreement to be certificates representing the same fractional undivided interests in the Related Trust and its trust property.  Each Certificateholder, by its acceptance of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a certificateholder thereunder.  From and after the Transfer, unless and to the extent the context otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the Related Trust, respectively.

 

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $1,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof except that one Certificate may be in a different denomination.  As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment by the Holder of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

 

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

 

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be

 



 

distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

 

UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, FROM AND AFTER THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

 



 

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

 

Dated:                        , 2004

 

 

JETBLUE AIRWAYS PASS THROUGH
TRUST, SERIES 2004-2G-1-O

 

 

 

By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee

 

 

 

By:

 

 

Name:

 

Title:

 



 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Certificates referred
to in the within-mentioned Agreement.

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as Trustee

 

 

 

By:

 

 

 

 Authorized Officer

 



 

FORM OF TRANSFER NOTICE

 

FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

 

please print or typewrite name and address including zip code of assignee

 

 

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

 

 

attorney to transfer said Certificate on the books of the Trustee with full power of substitution in the premises.

 

Date:

 

 

[Name of Transferor]

 

 

 

NOTE: The signature must correspond with
the name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any change
whatsoever.

 

 

Signature Guarantee:

 

 

 

 



 

JETBLUE AIRWAYS 2004-2G-1 ESCROW RECEIPT

 

No.     

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class G-1) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, HSBC Securities (USA) Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 



 

The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*     *     *

 



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                        , 2004

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

By:

 

 

Name:

 

Title:

 


EX-4.2 4 a04-11378_4ex4d2.htm EX-4.2

Exhibit 4.2

 

REGISTERED

No.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.

 

BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.  THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

 



 

GLOBAL CERTIFICATE

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2G-2-O

 

JetBlue Airways

Pass Through Certificate,

Series 2004-2G-2-O

 

Final Legal Distribution Date:                      , 20    

 

evidencing a fractional undivided interest in a trust, the property of which includes certain equipment notes each secured by an Aircraft owned by JetBlue Airways Corporation

 

having a face amount of $[                        ] representing [                        ]% of the Trust per $1,000 face amount

 

THIS CERTIFIES THAT                             , for value received, is the registered owner of a Fractional Undivided Interest having a face amount of $[                        ] (                                                                         dollars) in the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O (the “Trust”) created pursuant to a Pass Through Trust Agreement, dated as of November 15, 2004 (the “Agreement”), between Wilmington Trust Company (the “Trustee”) and JetBlue Airways Corporation, a corporation incorporated under Delaware law (the “Company”), a summary of certain of the pertinent provisions of which is set forth below.  To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement.  This Certificate is one of the duly authorized Certificates designated as “JetBlue Airways Pass Through Certificates, Series 2004-2G-2-O” (herein called the “Certificates”).  This Certificate is issued under and is subject to the terms, provisions, and conditions of the Agreement.  By virtue of its acceptance hereof the Certificateholder of this Certificate assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement.  The property of the Trust includes an interest in certain Equipment Notes and all rights of the Trust to receive payments under the Intercreditor Agreement, the Policy and any Liquidity Facility (the “Trust Property”).  Each issue of the Equipment Notes is secured by, among other things, a security interest in the Aircraft owned by the Company.

 

The Certificates represent fractional undivided interests in the Trust and the Trust Property, and have no rights, benefits or interest in respect of any assets or property other than the Trust Property.

 

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from and to the extent of funds then available to the Trustee, there will be distributed on each (i) February 15, May 15, August 15 and November 15 and (ii) in the case of any payment of principal or interest on, or with respect to, any Equipment Note received by the Subordination Agent after the date on which such payment is scheduled to be made, but within ten Business Days of such scheduled payment date, the date of receipt of such payment by the Trustee if received by noon and if later, the next Business Day (each a “Regular Distribution Date”), commencing on February 15, 2005, to the Person in whose name this Certificate is registered at the close of business on the Record Date immediately preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments due on such Regular

 



 

Distribution Date on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments.  Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received.  If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date.  The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

 

The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any of their affiliates.  The Certificates are limited in right or payment, all as more specifically set forth on the face hereof and in the Agreement.  All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement.  Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement.  This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.  A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

 

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust.  Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate.  The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

 

As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, in the Borough of Manhattan, the City of New York, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the

 



 

Trustee and the Registrar duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

 

Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

Under certain circumstances set forth in Section 11.01 of the Agreement, all of the Trustee’s right, title and interest to the Trust Property may be assigned, transferred and delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption Agreement.  Upon the effectiveness of such Assignment and Assumption Agreement (the “Transfer”), the Trust shall be terminated, the Certificateholders shall receive beneficial interests in the Related Trust in exchange for their interests in the Trust equal to their respective beneficial interests in the Trust, the Certificates representing Fractional Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related Pass Through Trust Agreement to be certificates representing the same fractional undivided interests in the Related Trust and its trust property.  Each Certificateholder, by its acceptance of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a certificateholder thereunder.  From and after the Transfer, unless and to the extent the context otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the Related Trust, respectively.

 

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $1,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof except that one Certificate may be in a different denomination.  As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment by the Holder of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

 

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

 

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

 



 

UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, FROM AND AFTER THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

 



 

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

 

Dated:                        , 2004

 

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2G-2-O

 

 

 

By:  WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee

 

 

 

By:

 

 

Name:

 

Title:

 



 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Certificates referred

to in the within-mentioned Agreement.

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as Trustee

 

 

 

By:

 

 

 

 Authorized Officer

 



 

FORM OF TRANSFER NOTICE

 

FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

 

please print or typewrite name and address including zip code of assignee

 

 

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

 

 

attorney to transfer said Certificate on the books of the Trustee with full power of substitution in the premises.

 

Date:

 

 

[Name of Transferor]

 

 

 

NOTE:  The signature must correspond with
the name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any change
whatsoever.

 

 

Signature Guarantee:

 

 

 

 



 

JETBLUE AIRWAYS 2004-2G-2 ESCROW RECEIPT

 

No.     

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class G-2) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, HSBC Securities (USA) Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 



 

The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*     *     *

 



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                          , 2004

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

By:

 

 

Name:

 

Title:

 


EX-4.3 5 a04-11378_4ex4d3.htm EX-4.3

Exhibit 4.3

 

 

REGISTERED

No.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.

 

BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.  THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

 



 

GLOBAL CERTIFICATE

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2C-O

 

JetBlue Airways

Pass Through Certificate,

Series 2004-2C-O

 

Final Legal Distribution Date:                        , 20    

 

evidencing a fractional undivided interest in a trust, the property of which includes certain equipment notes each secured by an Aircraft owned by JetBlue Airways Corporation

 

having a face amount of $[                        ] representing [                        ]% of the Trust per $1,000 face amount

 

THIS CERTIFIES THAT                             , for value received, is the registered owner of a Fractional Undivided Interest having a face amount of $[                        ] (                                                               dollars) in the JetBlue Airways Pass Through Trust, Series 2004-2C-O (the “Trust”) created pursuant to a Pass Through Trust Agreement, dated as of November 15, 2004 (the “Agreement”), between Wilmington Trust Company (the “Trustee”) and JetBlue Airways Corporation, a corporation incorporated under Delaware law (the “Company”), a summary of certain of the pertinent provisions of which is set forth below.  To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement.  This Certificate is one of the duly authorized Certificates designated as “JetBlue Airways Pass Through Certificates, Series 2004-2C-O” (herein called the “Certificates”).  This Certificate is issued under and is subject to the terms, provisions, and conditions of the Agreement.  By virtue of its acceptance hereof the Certificateholder of this Certificate assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement.  The property of the Trust includes an interest in certain Equipment Notes and all rights of the Trust to receive payments under the Intercreditor Agreement, the Policy and any Liquidity Facility (the “Trust Property”).  Each issue of the Equipment Notes is secured by, among other things, a security interest in the Aircraft owned by the Company.

 

The Certificates represent fractional undivided interests in the Trust and the Trust Property, and have no rights, benefits or interest in respect of any assets or property other than the Trust Property.

 

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from and to the extent of funds then available to the Trustee, there will be distributed on each (i) February 15, May 15, August 15 and November 15 and (ii) in the case of any payment of principal or interest on, or with respect to, any Equipment Note received by the Subordination Agent after the date on which such payment is scheduled to be made, but within ten Business Days of such scheduled payment date, the date of receipt of such payment by the Trustee if received by noon and if later, the next Business Day (each a “Regular Distribution Date”), commencing on February 15, 2005, to the Person in whose name this Certificate is registered at the close of business on the Record Date immediately preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments due on such Regular

 



 

Distribution Date on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments.  Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received.  If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date.  The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

 

The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any of their affiliates.  The Certificates are limited in right or payment, all as more specifically set forth on the face hereof and in the Agreement.  All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement.  Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement.  This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.  A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

 

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust.  Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate.  The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

 

As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, in the Borough of Manhattan, the City of New York, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the

 



 

Trustee and the Registrar duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

 

Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

Under certain circumstances set forth in Section 11.01 of the Agreement, all of the Trustee’s right, title and interest to the Trust Property may be assigned, transferred and delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption Agreement.  Upon the effectiveness of such Assignment and Assumption Agreement (the “Transfer”), the Trust shall be terminated, the Certificateholders shall receive beneficial interests in the Related Trust in exchange for their interests in the Trust equal to their respective beneficial interests in the Trust, the Certificates representing Fractional Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related Pass Through Trust Agreement to be certificates representing the same fractional undivided interests in the Related Trust and its trust property.  Each Certificateholder, by its acceptance of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a certificateholder thereunder.  From and after the Transfer, unless and to the extent the context otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the Related Trust, respectively.

 

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $1,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof except that one Certificate may be in a different denomination.  As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment by the Holder of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

 

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

 

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

 



 

UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, FROM AND AFTER THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

 



 

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

 

Dated:                        , 2004

 

 

JETBLUE AIRWAYS PASS THROUGH
TRUST, SERIES 2004-2C-O

 

 

 

By:  WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee

 

 

 

By:

 

 

Name:

 

Title:

 



 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Certificates referred

to in the within-mentioned Agreement.

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as Trustee

 

 

 

By:

 

 

 

 Authorized Officer

 



 

FORM OF TRANSFER NOTICE

 

FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

 

please print or typewrite name and address including zip code of assignee

 

 

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

 

 

attorney to transfer said Certificate on the books of the Trustee with full power of substitution in the premises.

 

Date:

 

 

[Name of Transferor]

 

 

 

NOTE:  The signature must correspond with
the name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any change
whatsoever.

 

 

Signature Guarantee:

 

 

 

 



 

JETBLUE AIRWAYS 2004-2C ESCROW RECEIPT

 

No.     

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class C) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, HSBC Securities (USA) Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 



 

The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*     *     *

 



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                        , 2004

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

By:

 

 

Name:

 

Title:

 


EX-4.4 6 a04-11378_4ex4d4.htm EX-4.4

Exhibit 4.4

 

EXECUTION COPY

 

 

PASS THROUGH TRUST AGREEMENT

 

dated as of November 15, 2004

 

between

 

JETBLUE AIRWAYS CORPORATION

 

and

 

WILMINGTON TRUST COMPANY,

as Trustee

 

 

JetBlue Airways Pass Through Trust, Series 2004-2G-1-O

 

Pass Through Certificates, Series 2004-2G-1-O

 

 



 

Reconciliation and tie between JetBlue Airways Pass Through Trust Agreement, Series 2004-2G-1-O dated as of November 15, 2004, and the Trust Indenture Act of 1939.  This reconciliation does not constitute part of the Pass Through Trust Agreement.

 

Trust Indenture Act
of 1939 Section

 

Pass Through Trust
Agreement Section

 

 

 

310

(a)(1)

 

 

7.08

 

(a)(2)

 

 

7.08

312

(a)

 

 

3.05; 8.01; 8.02

313

(a)

 

 

7.06; 8.03

314

(a)

 

 

8.04(a), (c) & (d)

 

(a)(4)

 

 

8.04(e)

 

(c)(1)

 

 

1.02

 

(c)(2)

 

 

1.02

 

(d)(1)

 

 

7.13; 11.01

 

(d)(2)

 

 

7.13; 11.01

 

(d)(3)

 

 

2.01

 

(e)

 

 

1.02

315

(b)

 

 

7.02

316

(a)(last sentence)

 

 

1.04(c)

 

(a)(1)(A)

 

 

6.04

 

(a)(1)(B)

 

 

6.05

 

(b)

 

 

6.06

 

(c)

 

 

1.04(e)

317

(a)(1)

 

 

6.03

 

(b)

 

 

7.13

318

(a)

 

 

12.06

 



 

TABLE OF CONTENTS

 

ARTICLE I  DEFINITIONS

 

Section 1.01.

Definitions

 

Section 1.02.

Compliance Certificates and Opinions

 

Section 1.03.

Form of Documents Delivered to Trustee

 

Section 1.04.

Directions of Certificateholders

 

 

 

 

ARTICLE II  ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT NOTES

 

Section 2.01.

Issuance of Certificates; Acquisition of Equipment Notes

 

Section 2.02.

Withdrawal of Deposits

 

Section 2.03.

Acceptance by Trustee

 

Section 2.04.

Limitation of Powers

 

 

 

 

ARTICLE III  THE CERTIFICATES

 

Section 3.01.

Title, Form, Denomination and Execution of Certificates

 

Section 3.02.

Restrictive Legends

 

Section 3.03.

Authentication of Certificates

 

Section 3.04.

Transfer and Exchange

 

Section 3.05.

Global, Book-Entry and Definitive Certificates

 

Section 3.06.

[Intentionally Omitted.]

 

Section 3.07.

Mutilated, Destroyed, Lost or Stolen Certificates

 

Section 3.08.

Persons Deemed Owners

 

Section 3.09.

Cancellation

 

Section 3.10.

Temporary Certificates

 

Section 3.11.

Limitation of Liability for Payments

 

Section 3.12.

ERISA Legend

 

 

 

 

ARTICLE IV  DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS

 

Section 4.01.

Certificate Account and Special Payments Account

 

Section 4.02.

Distributions from Certificate Account and Special Payments Account

 

Section 4.03.

Statements to Certificateholders

 

Section 4.04.

Investment of Special Payment Moneys

 

 

 

 

ARTICLE V  THE COMPANY

 

Section 5.01.

Maintenance of Corporate Existence

 

Section 5.02.

Consolidation, Merger, etc

 

 

 

 

ARTICLE VI  DEFAULT

 

Section 6.01.

Events of Default

 

Section 6.02.

Incidents of Sale of Equipment Notes

 

Section 6.03.

Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit

 

Section 6.04.

Control by Certificateholders

 

 

i



 

Section 6.05.

Waiver of Past Defaults

 

Section 6.06.

Right of Certificateholders to Receive Payments Not to Be Impaired

 

Section 6.07.

Certificateholders May Not Bring Suit Except Under Certain Conditions

 

Section 6.08.

Remedies Cumulative

 

 

 

 

ARTICLE VII  THE TRUSTEE

 

Section 7.01.

Certain Duties and Responsibilities

 

Section 7.02.

Notice of Defaults

 

Section 7.03.

Certain Rights of Trustee

 

Section 7.04.

Not Responsible for Recitals or Issuance of Certificates

 

Section 7.05.

May Hold Certificates

 

Section 7.06.

Money Held in Trust

 

Section 7.07.

Compensation and Reimbursement

 

Section 7.08.

Corporate Trustee Required; Eligibility

 

Section 7.09.

Resignation and Removal; Appointment of Successor

 

Section 7.10.

Acceptance of Appointment by Successor

 

Section 7.11.

Merger, Conversion, Consolidation or Succession to Business

 

Section 7.12.

Maintenance of Agencies

 

Section 7.13.

Money for Certificate Payments to Be Held in Trust

 

Section 7.14.

Registration of Equipment Notes in Name of Subordination Agent

 

Section 7.15.

Representations and Warranties of Trustee

 

Section 7.16.

Withholding Taxes Information Reporting

 

Section 7.17.

Trustee’s Liens

 

Section 7.18.

Preferential Collection of Claims

 

 

 

 

ARTICLE VIII  CERTIFICATEHOLDERS’ LISTS AND REPORTS BY TRUSTEE

 

Section 8.01.

The Company to Furnish Trustee with Names and Addresses of Certificateholders

 

Section 8.02.

Preservation of Information Communications to Certificateholders

 

Section 8.03.

Reports by Trustee

 

Section 8.04.

Reports by the Company

 

 

 

 

ARTICLE IX  SUPPLEMENTAL AGREEMENTS

 

Section 9.01.

Supplemental Agreements Without Consent of Certificateholders

 

Section 9.02.

Supplemental Agreements with Consent of Certificateholders

 

Section 9.03.

Documents Affecting Immunity or Indemnity

 

Section 9.04.

Execution of Supplemental Agreements

 

Section 9.05.

Effect of Supplemental Agreements

 

 

ii



 

Section 9.06.

Conformity with Trust Indenture Act

 

Section 9.07.

Reference in Certificates to Supplemental Agreements

 

 

 

 

ARTICLE X  AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS

 

Section 10.01.

Amendments and Supplements to Indentures and Financing Documents

 

 

 

 

ARTICLE XI  TERMINATION OF TRUST

 

Section 11.01.

Termination of the Trust

 

 

 

 

ARTICLE XII  MISCELLANEOUS PROVISIONS

 

Section 12.01.

Limitation on Rights of Certificateholders

 

Section 12.02.

Certificates Nonassessable and Fully Paid

 

Section 12.03.

Notices

 

Section 12.04.

Governing Law

 

Section 12.05.

Severability of Provisions

 

Section 12.06.

Trust Indenture Act Controls

 

Section 12.07.

Effect of Headings and Table of Contents

 

Section 12.08.

Successors and Assigns

 

Section 12.09.

Benefits of Agreement

 

Section 12.10.

Legal Holidays

 

Section 12.11.

Counterparts

 

Section 12.12.

Intention of Parties

 

 

Exhibit A

-

Form of Certificate

 

Exhibit B

-

Form of Assignment and Assumption Agreement

 

Exhibit C

-

Form of Notice to Withholding Agent

 

 

iii



 

PASS THROUGH TRUST AGREEMENT

 

THIS PASS THROUGH TRUST AGREEMENT, dated as of November 15, 2004 (the “Agreement”), between JETBLUE AIRWAYS CORPORATION, a Delaware corporation, and WILMINGTON TRUST COMPANY, as Trustee, is made with respect to the formation of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O and the issuance of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O Pass Through Certificates representing fractional undivided interests in the Trust.

 

W I T N E S S E T H:

 

WHEREAS, the Company has obtained commitments from AVSA for the delivery of fifteen (15) Airbus A320-232 aircraft (collectively, the “Aircraft”);

 

WHEREAS, the Company intends to finance or refinance the acquisition of the Aircraft through separate secured loan transactions in which the Company will own such Aircraft;

 

WHEREAS, in the case of each Aircraft, the Company will issue pursuant to an Indenture, on a recourse basis, three series of Equipment Notes to finance or refinance a portion of the purchase price of such Aircraft;

 

WHEREAS, the Trustee, upon execution and delivery of this Agreement, hereby declares the creation of the Trust for the benefit of the Certificateholders, as the grantors of the Trust, by their respective acceptances of the Certificates, join in the creation of this Trust with the Trustee;

 

WHEREAS, all Certificates to be issued by the Trust will evidence Fractional Undivided Interests in the Trust and will convey no rights, benefits or interests in respect of any property other than the Trust Property except for those Certificates to which an Escrow Receipt has been affixed;

 

WHEREAS, the Escrow Agent and the Underwriters have contemporaneously herewith entered into an Escrow Agreement with the Escrow Paying Agent pursuant to which the Underwriters have delivered to the Escrow Agent the proceeds from the sale of the Certificates and have irrevocably instructed the Escrow Agent to withdraw and pay funds from such proceeds upon request and proper certification by the Trustee to purchase Equipment Notes;

 

WHEREAS, the Escrow Agent on behalf of the Certificateholders has contemporaneously herewith entered into a Deposit Agreement with the Depositary under which the Deposits referred to therein will be made and from which it will withdraw funds to allow the Trustee to purchase Equipment Notes from time to time prior to the Delivery Period Termination Date;

 

WHEREAS, pursuant to the terms and conditions of this Agreement and the Note Purchase Agreement, upon or following delivery of an Aircraft, the Trustee on behalf of the Trust, using funds withdrawn under the Escrow Agreement, may purchase an Equipment Note having the same interest rate as, and final legal distribution date not later than the final Regular

 



 

Distribution Date of, the Certificates issued hereunder and shall hold such Equipment Note in trust for the benefit of the Certificateholders;

 

WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of Equipment Notes by, the Trustee on behalf of the Trust, the Company has duly authorized the execution and delivery of this Agreement as the “issuer”, as such term is defined in and solely for purposes of the Securities Act, of the Certificates to be issued pursuant hereto and as the “obligor”, as such term is defined in and solely for purposes of the Trust Indenture Act of 1939, as amended, with respect to all such Certificates and is undertaking to perform certain administrative and ministerial duties hereunder and is also undertaking to pay the ongoing fees and expenses of the Trustee;

 

WHEREAS, all of the conditions and requirements necessary to make this Agreement, when duly executed and delivered, a valid, binding and legal instrument, enforceable in accordance with its terms and for the purposes herein expressed, have been done, performed and fulfilled, and the execution and delivery of this Agreement in the form and with the terms hereof have been in all respects duly authorized; and

 

WHEREAS, this Agreement, as amended or supplemented from time to time, will be subject to the provisions of the Trust Indenture Act of 1939, and shall, to the extent applicable, be governed by such provisions;

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.01.        Definitions.  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)           the terms used in this Agreement, including in the recitals to this Agreement, that are defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

 

(2)           all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, or by the rules promulgated under the Trust Indenture Act, have the meanings assigned to them therein;

 

(3)           all references in this Agreement to designated “Articles”, “Sections”, “Subsections” and other subdivisions are to the designated Articles, Sections, Subsections and other subdivisions of this Agreement;

 

(4)           the words “herein”, “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection or other subdivision; and

 

2



 

(5)           unless the context otherwise requires, whenever the words “including”, “include” or “includes” are used herein, it shall be deemed to be followed by the phrase “without limitation”.

 

Above-Cap Liquidity Facility” means, initially, the ISDA Master Agreement, dated as of November 15, 2004, between the Subordination Agent, as agent and trustee for the Class G-1 Trust, and the initial Class G-1 Above-Cap Liquidity Provider, together with the Schedule and Confirmation attached thereto, relating to the Class G-1 Certificates, and, from and after replacement of such ISDA Master Agreement pursuant to the Intercreditor Agreement, the Replacement Above-Cap Liquidity Facility (as defined in the Intercreditor Agreement) therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Above-Cap Liquidity Provider” means Citibank, N.A. or any Replacement Above-Cap Liquidity Provider which has issued a Replacement Above-Cap Liquidity Facility (each as defined in the Intercreditor Agreement) to replace the Class G-1 Above-Cap Liquidity Facility pursuant to Section 3.6(c)(ii) of the Intercreditor Agreement.

 

Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person.  For the purposes of this definition, “control” means the power, directly or indirectly, to direct the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Agent Members” means members of, or participants in, DTC.

 

Agreement” has the meaning specified in the initial paragraph hereto.

 

Aircraft” has the meaning specified in the Note Purchase Agreement.

 

Aircraft Purchase Agreement” has the meaning specified in the Note Purchase Agreement.

 

Applicable Funding Date” has the meaning specified in Section 2.01(b).

 

Applicable Participation Agreement” has the meaning specified in Section 2.01(b).

 

Assignment and Assumption Agreement” means the assignment and assumption agreement substantially in the form of Exhibit B hereto to be executed and delivered in accordance with Section 11.01.

 

Authorized Agent” means any Paying Agent or Registrar for the Certificates.

 

Avoidable Tax” means a state or local tax (i) upon (w) the Trust, (x) the Trust Property, (y) Certificateholders or (z) the Trustee for which the Trustee is entitled to seek reimbursement from the Trust Property, and (ii) which would be avoided if the Trustee were located in another

 

3



 

state, or jurisdiction within a state, within the United States.  A tax shall not be an Avoidable Tax if the Company shall agree to pay, and shall pay, such tax.

 

AVSA” means AVSA S.A.R.L., an affiliate of Airbus S.A.S.

 

Book-Entry Certificate” means, with respect to the Global Certificate, a beneficial interest in the Global Certificate, ownership and transfers of which shall be made through book entries as described in Section 3.05.

 

Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks are required or authorized to close in New York, New York, Wilmington, Delaware or, so long as any Certificate is outstanding, the city and state in which the Trustee or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds.

 

Certificate” means any one of the certificates executed and authenticated by the Trustee, substantially in the form of Exhibit A hereto.

 

Certificate Account” means the account or accounts created and maintained pursuant to Section 4.01(a).

 

Certificate Owner” means, with respect to the Certificates, for purposes of Section 3.05, a Person who owns a Book-Entry Certificate.

 

Certificateholder or Holder” means the Person in whose name a Certificate is registered in the Register.

 

Class C Certificate” has the meaning specified in the Intercreditor Agreement.

 

Class C Certificateholder” means, at any time, any holder of one or more pass through certificates issued by the JetBlue Airways Pass Through Trust, Series 2004-2C-O.

 

Class G-2 Certificate” has the meaning specified in the Intercreditor Agreement.

 

Class G-2 Certificateholder” means, at any time, any holder of one or more pass through certificates issued by the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O.

 

Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.

 

Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects, directly or indirectly, book-entry transfers and pledges of securities deposited with the Clearing Agency.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated thereunder.

 

Company” means JetBlue Airways Corporation, a Delaware corporation, or its successor in interest pursuant to Section 5.02, or (only in the context of provisions hereof, if any,

 

4



 

where such reference is required for purposes of compliance with the Trust Indenture Act) any other “obligor” (within the meaning of the Trust Indenture Act) with respect to the Certificates.

 

Controlling Party” has the meaning specified in the Intercreditor Agreement.

 

Corporate Trust Office” with respect to the Trustee or any Loan Trustee, means the office of such trustee in the city at which at any particular time its corporate trust business shall be principally administered.

 

Cut-off Date” means the earlier of (a) the Delivery Period Termination Date and (b) the date on which a Triggering Event occurs.

 

Definitive Certificates” has the meaning specified in Section 3.05.

 

Delivery Period Termination Date” means the earlier of (a) February 28, 2006, or, if the Equipment Notes relating to all of the Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased by the Trustee and the Other Trustees on or prior to such date due to any reason beyond the control of the Company and not occasioned by the Company’s fault or negligence, May 31, 2006 and (b) the date on which Equipment Notes issued with respect to all of the Aircraft (or Substitute Aircraft in lieu thereof) have been purchased by the Trustee and the Other Trustees in accordance with the Note Purchase Agreement.

 

Deposits” has the meaning specified in the Deposit Agreement.

 

Deposit Agreement” means the Deposit Agreement dated as of November 15, 2004 relating to the Certificates between the Depositary and the Escrow Agent, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch.

 

Direction” has the meaning specified in Section 1.04(a).

 

Distribution Date” means any Regular Distribution Date or Special Distribution Date as the context requires.

 

DTC” means The Depository Trust Company, its nominees and their respective successors.

 

Equipment Notes” means the equipment notes issued under the Indentures.

 

ERISA” means Employee Retirement Income Security Act of 1974, as amended from time to time.

 

Escrow Agent” means, initially, Wilmington Trust Company.

 

Escrow Agreement” means the Escrow and Paying Agent Agreement dated as of November 15, 2004 relating to the Certificates, among the Escrow Agent, the Escrow Paying

 

5



 

Agent, the Trustee and the Underwriters, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Escrow Paying Agent” means the Person acting as paying agent under the Escrow Agreement.

 

Escrow Receipt” means the receipt substantially in the form annexed to the Escrow Agreement representing a fractional undivided interest in the funds held in escrow thereunder.

 

Event of Default” means an Indenture Default under any Indenture pursuant to which Equipment Notes held by the Trust were issued.

 

Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time, or any successor thereto.

 

Final Legal Distribution Date” means February 15, 2018.

 

Final Withdrawal” has the meaning specified in the Escrow Agreement.

 

Final Withdrawal Date” has the meaning specified in the Escrow Agreement.

 

Final Withdrawal Notice” has the meaning specified in Section 2.02.

 

Financing Documents” with respect to any Equipment Note, means the Indenture and the Participation Agreement relating to such Equipment Note.

 

Fractional Undivided Interest” means the fractional undivided interest in the Trust that is evidenced by a Certificate relating to such Trust.

 

Funding Date” has the meaning specified in the Note Purchase Agreement.

 

Funding Notice” has the meaning specified in the Note Purchase Agreement.

 

Global Certificates” means certificates representing the Book-Entry Certificate delivered to and held by a Clearing Agency or its nominee.

 

Indenture” means each of the separate trust indentures and mortgages relating to the Aircraft, each as specified or described in a Funding Notice delivered pursuant to the Note Purchase Agreement or the related Participation Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Indenture Default” with respect to any Indenture, means any Event of Default (as such term is defined in such Indenture).

 

Intercreditor Agreement” means the Intercreditor Agreement dated as of November 15, 2004 among the Trustee, the Other Trustees, the Liquidity Providers, the liquidity providers relating to the Certificates issued under (and as defined in) the Other Pass Through Trust Agreements, the Policy Provider, and Wilmington Trust Company, as Subordination Agent

 

6



 

and as trustee thereunder, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Investors” means the Underwriters together with all subsequent beneficial owners of the Certificates.

 

Issuance Date” means the date of the original issuance of the Certificates.

 

Letter of Representations” means, with respect to the Certificates, an agreement between the Company, the Trustee and the initial Clearing Agency substantially in the form attached as an exhibit hereto, as such letter may be modified or supplemented, or any successor letter thereto.

 

Liquidity Facilities” means the Primary Liquidity Facility and the Above-Cap Liquidity Facility.

 

Liquidity Providers” means the Primary Liquidity Provider and the Above-Cap Liquidity Provider.

 

Loan Trustee” with respect to any Equipment Note or the Indenture applicable thereto, means the bank or trust company designated as trustee under such Indenture, together with any successor to such trustee appointed pursuant thereto.

 

Note Purchase Agreement” means the Note Purchase Agreement dated as of November 15, 2004 among the Trustee, the Other Trustee, the Company, the Escrow Agent, the Escrow Paying Agent and the Subordination Agent, providing for, among other things, the purchase of Equipment Notes by the Trustee on behalf of the Trust, as the same may be amended, supplemented or otherwise modified from time to time, in accordance with its terms.

 

Notice of Purchase Withdrawal” has the meaning specified in the Deposit Agreement.

 

Officer’s Certificate” means a certificate signed (a) in the case of the Company, by any Vice President or more senior officer of the Company or, (b) in the case of a Loan Trustee, a Responsible Officer of such Loan Trustee, as the case may be.

 

Opinion of Counsel” means a written opinion of legal counsel who (a) in the case of counsel for the Company may be (i) the General Counsel of the Company, (ii) Vedder, Price, Kaufman & Kammholz, P.C., (iii) Nixon Peabody LLP or (iv) such other counsel designated by the Company and reasonably acceptable to the Trustee and (b) in the case of counsel for any Loan Trustee may be such counsel as may be designated by any of them whether or not such counsel is an employee of any of them, and who shall be reasonably acceptable to the Trustee.

 

Other Pass Through Trust Agreements” means the other JetBlue Airways 2004-2 Pass Through Trust Agreements relating to the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O and the JetBlue Airways Pass Through Trust, Series 2004-2C-O, each dated the date hereof.

 

7



 

Other Trustee” means each trustee under the Other Pass Through Trust Agreements, and any successor or other trustee appointed as provided therein.

 

Other Trusts” means the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O and JetBlue Airways Pass Through Trust, Series 2004-2C-O each created on the date hereof.

 

Outstanding” when used with respect to Certificates, means, as of the date of determination, all Certificates theretofore authenticated and delivered under this Agreement, except:

 

(i)            Certificates theretofore canceled by the Registrar or delivered to the Trustee or the Registrar for cancellation;

 

(ii)           Certificates for which money in the full amount required to make the final distribution with respect to such Certificates pursuant to Section 11.01 hereof has been theretofore deposited with the Trustee in trust for the Holders of such Certificates as provided in Section 4.01 pending distribution of such money to such Certificateholders pursuant to payment of such final distribution; and

 

(iii)          Certificates in exchange for or in lieu of which other Certificates have been authenticated and delivered pursuant to this Agreement.

 

Participation Agreement” means each Participation Agreement to be entered into by the Trustee pursuant to the Note Purchase Agreement, as the same may be amended, supplemented or otherwise modified in accordance with its terms.

 

Paying Agent” means the paying agent maintained and appointed for the Certificates pursuant to Section 7.12.

 

Permitted Investments” means obligations of the United States of America or agencies or instrumentalities thereof for the payment of which the full faith and credit of the United States of America is pledged, maturing in not more than 60 days after the date of acquisition thereof or such lesser time as is required for the distribution of any Special Payments on a Special Distribution Date.

 

Person” means any person, including any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, trustee, unincorporated organization, or government or any agency or political subdivision thereof.

 

Policy” has the meaning specified in the Intercreditor Agreement.

 

Policy Provider” has the meaning specified in the Intercreditor Agreement.

 

Policy Provider Agreement” has the meaning specified in the Intercreditor Agreement.

 

Policy Provider Amounts” has the meaning specified in the Intercreditor Agreement.

 

Policy Provider Default” has the meaning specified in the Intercreditor Agreement.

 

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Pool Balance” means, as of any date, (i) the original aggregate face amount of the Certificates less (ii) the aggregate amount of all payments made in respect of such Certificates other than payments made in respect of interest, Break Amount or premium thereon or reimbursement of any costs or expenses incurred in connection therewith.  The Pool Balance as of any Distribution Date shall be computed after giving effect to the payment of principal, if any, on the Equipment Notes or other Trust Property held in such Trust and the distribution thereof to be made on such Distribution Date and the distribution of the Final Withdrawal to be made on such Distribution Date.

 

Pool Factor” means, as of any date, the quotient (rounded to the seventh decimal place) computed by dividing (i) the Pool Balance as at such date by (ii) the original aggregate face amount of the Certificates.  The Pool Factor as of any Distribution Date shall be computed after giving effect to the payment of principal, if any, on the Equipment Notes or other Trust Property and the distribution thereof to be made on such Distribution Date and the distribution of the Final Withdrawal to be made on such Distribution Date.

 

Primary Liquidity Facility” means, initially, the Revolving Credit Agreement dated as of November 15, 2004 relating to the Certificates, between the Primary Liquidity Provider and the Subordination Agent, as agent and trustee for the Trustee, and, from and after the replacement of such Agreement pursuant to the Intercreditor Agreement, the Replacement Primary Liquidity Facility (as defined in the Intercreditor Agreement) therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with their respective terms.

 

Primary Liquidity Provider” means, initially, Landesbank Baden-Württemberg or any Replacement Primary Liquidity Provider which has issued a Replacement Primary Liquidity Facility (each as defined in the Intercreditor Agreement) to replace the Class G-1 Primary Liquidity Facility pursuant to Section 2.7 or 3.6(e) of the Intercreditor Agreement.

 

Prospectus” means the prospectus dated November 4, 2004, as supplemented by the prospectus supplement dated November 9, 2004, relating to the offer and sale of the Certificates and the certificates issued under the Other Pass Through Trust Agreements.

 

PTC Event of Default” means any failure to pay within ten Business Days of the due date thereof:  (i) the outstanding Pool Balance on the Final Legal Distribution Date (unless the Subordination Agent shall have made a drawing under the Policy in an aggregate amount sufficient to pay the outstanding Pool Balance and shall have distributed such amount to the Trustee) or (ii) interest due on the Certificates on any Distribution Date (unless the Subordination Agent shall have made an Interest Drawing or Drawings (as defined in the Intercreditor Agreement), a withdrawal or withdrawals pursuant to Section 3.6(f) of the Intercreditor Agreement, or a drawing under the Policy, with respect thereto in an aggregate amount sufficient to pay such interest and shall have distributed such amount to the Trustee).

 

Record Date” means (i) for Scheduled Payments to be distributed on any Regular Distribution Date, other than the final distribution, February 1, May 1, August 1 or November 1 (whether or not a Business Day) immediately preceding such Regular Distribution Date, and (ii) for Special Payments to be distributed on any Special Distribution Date, other than the final

 

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distribution, the 15th day (whether or not a Business Day) preceding such Special Distribution Date.

 

Register and Registrar” mean the register maintained and the registrar appointed pursuant to Sections 3.04 and 7.12.

 

Regular Distribution Date” with respect to distributions of Scheduled Payments in respect of the Certificates, means each date designated as a Regular Distribution Date in the Certificates issued pursuant to this Agreement, until payment of all the Scheduled Payments to be made under the Equipment Notes held in the Trust have been made; provided, however, that, if any such day shall not be a Business Day, the related distribution shall be made on the next succeeding Business Day.

 

Related Pass Through Trust Agreement” means the Pass Through Trust Agreement relating to the JetBlue Airways Pass Through Trust, Series 2004-2G-1-S, dated the date hereof, between the Company and the institution acting as trustee thereunder, which agreement becomes effective upon the execution and delivery of the Assignment and Assumption Agreement pursuant to Section 11.01.

 

Related Trust” means the JetBlue Airways Pass Through Trust, Series 2004-2G-1-S, formed under the Related Pass Through Trust Agreement.

 

Related Trustee” means the trustee under the Related Pass Through Trust Agreement.

 

Responsible Officer” with respect to the Trustee and any Loan Trustee, means any officer in the Corporate Trust Office of the Trustee, Loan Trustee or any other officer customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject.

 

Scheduled Payment” with respect to any Equipment Note, means (i) any payment of principal or interest on or in respect of such Equipment Note (other than any such payment which is not in fact received by the Subordination Agent within ten Business Days of the date on which such payment is scheduled to be made) due from the obligor thereon or (ii) any payment of interest on the Certificates with funds drawn under any Liquidity Facility or any payment of interest on or principal of the Certificates with funds drawn under the Policy, which payment in any such case represents the installment of principal at the stated maturity of such installment of principal on such Equipment Note, the payment of regularly scheduled interest accrued on the unpaid principal amount of such Equipment Note, or both; provided that any payment of principal, premium, if any, or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.

 

SEC” means the Securities and Exchange Commission, as from time to time constituted or created under the United States Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.

 

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Securities Act” means the United States Securities Act of 1933, as amended from time to time, or any successor thereto.

 

Special Distribution Date” means each date on which a Special Payment is to be distributed as specified in this Agreement; provided, however, that, if any such day shall not be a Business Day, the related distribution shall be made on the next succeeding Business Day.

 

Special Payment” means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture) or Special Redemption Premium.

 

Special Payments Account” means the account or accounts created and maintained pursuant to Section 4.01(b).

 

Special Redemption Premium” means the premium payable by the Company in respect of the Final Withdrawal pursuant to the Note Purchase Agreement.

 

Subordination Agent” has the meaning specified in the Intercreditor Agreement.

 

Substitute Aircraft” has the meaning specified in the Note Purchase Agreement.

 

Tax” means all license, recording, documentary, registration and other similar fees and all taxes, levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever imposed by any Taxing Authority, together with any penalties, additions to tax, fines or interest thereon or additions thereto.

 

Taxing Authority” means any federal, state or local government or other taxing authority in the United States, any foreign government or any political subdivision or taxing authority thereof, any international taxing authority or any territory or possession of the United States or any taxing authority thereof.

 

Transfer Date” has the meaning specified in Section 11.01.

 

Triggering Event” has the meaning assigned to such term in the Intercreditor Agreement.

 

Trust” means the trust created by this Agreement, the estate of which consists of the Trust Property.

 

Trust Indenture Act” means the United States Trust Indenture Act of 1939, as amended from time to time, or any successor thereto.

 

Trust Property” means (i) the Equipment Notes held as the property of the Trust and, subject to the Intercreditor Agreement, all monies at any time paid thereon and all monies due and to become due thereunder, (ii) funds from time to time deposited in the Certificate Account and the Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to Article VI hereof of any Equipment Note and (iii) all rights of the Trust and the Trustee, on behalf of the Trust, under the Intercreditor Agreement, the

 

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Escrow Agreement, the Note Purchase Agreement, the Policy and the Liquidity Facilities, including, without limitation, all rights to receive certain payments thereunder, and all monies paid to the Trustee on behalf of the Trust pursuant to the Intercreditor Agreement, the Policy or the Liquidity Facilities, provided that rights with respect to the Deposits or under the Escrow Agreement, except for the right to direct withdrawals for the purchase of Equipment Notes to be held herein, will not constitute Trust Property.

 

Trustee” means Wilmington Trust Company, or its successor in interest, and any successor or other trustee appointed as provided herein.

 

Trustee’s Liens” has the meaning specified in Section 7.17.

 

Underwriters” means the several underwriters listed as such in the Underwriting Agreement.

 

Underwriting Agreement” means the Underwriting Agreement dated November 9, 2004 among the Underwriters and the Company, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Unindemnified Tax” means (i) any Tax imposed on the net income, net worth or capital, or any franchise Tax or similar doing business Tax, of the Trustee, (ii) any withholding Tax imposed by the United States (including, without limitation, any withholding Tax imposed by the United States which is imposed or increased as a result of the Trustee failing to deliver to the Company any certificate or document necessary to establish that payments under this Agreement are exempt from withholding Tax), and (iii) any Avoidable Tax.

 

Section 1.02.        Compliance Certificates and Opinions.  Upon any application or request (except with respect to matters set forth in Article II) by the Company, any Loan Trustee to the Trustee to take any action under any provision of this Agreement, the Company, such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement (other than a certificate provided pursuant to Section 8.04(d)) shall include:

 

(1)           a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions in this Agreement relating thereto;

 

(2)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

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(3)           a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(4)           a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 1.03.        Form of Documents Delivered to Trustee.  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement or, in respect of the Certificates, this Agreement, they may, but need not, be consolidated and form one instrument.

 

Section 1.04.        Directions of Certificateholders.  (a) Any direction, consent, request, demand, authorization, notice, waiver or other action provided by this Agreement to be given or taken by Certificateholders (a “Direction”) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Certificateholders in person or by an agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required pursuant to this Agreement, to the Company or any Loan Trustee.  Proof of execution of any such instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Company and any Loan Trustee, if made in the manner provided in this Section.

 

(b)           The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or such other officer and where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.

 

(c)           In determining whether the Certificateholders of the requisite Fractional Undivided Interests of Certificates Outstanding have given any Direction under this Agreement, Certificates owned by the Company or any Affiliate thereof shall be disregarded and deemed not

 

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to be Outstanding for purposes of any such determination.  In determining whether the Trustee shall be protected in relying upon any such Direction, only Certificates which the Trustee knows to be so owned shall be so disregarded.  Notwithstanding the foregoing, (i) if any such Person owns 100% of the Certificates Outstanding, such Certificates shall not be so disregarded, and (ii) if any amount of Certificates so owned by any such Person have been pledged in good faith, such Certificates shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Certificates and that the pledgee is not the Company or any Affiliate thereof.

 

(d)           For all purposes of this Agreement, all Certificates shall vote and take all other actions of Certificateholders together as one series of Certificates.

 

(e)           The Company may at its option, by delivery of an Officer’s Certificate to the Trustee, set a record date to determine the Certificateholders entitled to give any Direction.  Notwithstanding Section 316(c) of the Trust Indenture Act, such record date shall be the record date specified in such Officer’s Certificate, which shall be a date not more than 30 days prior to the first solicitation of Certificateholders in connection therewith.  If such a record date is fixed, such Direction may be given before or after such record date, but only the Certificateholders of record at the close of business on such record date shall be deemed to be Certificateholders for the purposes of determining whether Certificateholders of the requisite proportion of Outstanding Certificates have authorized or agreed or consented to such Direction, and for that purpose the Outstanding Certificates shall be computed as of such record date; provided that no such Direction by the Certificateholders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Agreement not later than one year after such record date.

 

(f)            Any Direction by the Holder of any Certificate shall bind the Holder of every Certificate issued upon the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such Direction is made upon such Certificate.

 

(g)           Except as otherwise provided in Section 1.04(c), Certificates owned by or pledged to any Person shall have an equal and proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Certificates.

 

ARTICLE II

ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES

 

Section 2.01.        Issuance of Certificates; Acquisition of Equipment Notes.  (a) The Trustee is hereby directed (i) to execute and deliver the Intercreditor Agreement, the Escrow Agreement, the Policy Provider Agreement and the Note Purchase Agreement on or prior to the Issuance Date, each in the form delivered to the Trustee by the Company and (ii) subject to the respective terms thereof, to perform its obligations thereunder.  Upon request of the Company and the satisfaction or waiver of the closing conditions specified in the Underwriting Agreement, the Trustee shall execute, deliver, authenticate, issue and sell Certificates in authorized denominations equaling in the aggregate the amount set forth, with respect to the Trust, in

 

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Schedule II to the Underwriting Agreement evidencing the entire ownership interest in the Trust, which amount equals the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the Note Purchase Agreement.  Except as provided in Sections 3.04, 3.05, 3.07 and 3.10 hereof, the Trustee shall not execute, authenticate or deliver Certificates in excess of the aggregate amount specified in this paragraph.

 

(b)           On or after the Issuance Date, the Company may deliver from time to time to the Trustee a Funding Notice relating to one or more Equipment Notes.  After receipt of a Funding Notice and in any case no later than one Business Day prior to a Funding Date as to which such Funding Notice relates (the “Applicable Funding Date”) (or, if the Issuance Date is an Applicable Funding Date, on the Issuance Date), the Trustee shall (as and when specified in the Funding Notice) instruct the Escrow Agent to provide a Notice of Purchase Withdrawal to the Depositary requesting (A) the withdrawal of one or more Deposits on the Applicable Funding Date in accordance with and to the extent permitted by the terms of the Escrow Agreement and the Deposit Agreement and (B) the payment of all, or a portion, of such Deposit or Deposits in an amount equal in the aggregate to the purchase price of such Equipment Notes to or on behalf of the Company, as the case may be, issuing such Equipment Notes, all as shall be described in the Funding Notice; provided that, if the Issuance Date is an Applicable Funding Date, such purchase price shall be paid from a portion of the proceeds of the sale of the Certificates.  The Trustee shall (as and when specified in such Funding Notice), subject to the conditions set forth in Section 2 of the Note Purchase Agreement, enter into and perform its obligations under the Participation Agreement specified in such Funding Notice (the “Applicable Participation Agreement”) and cause such certificates, documents and legal opinions relating to the Trustee to be duly delivered as required by the Applicable Participation Agreement.  If at any time prior to the Applicable Funding Date, the Trustee receives a notice of postponement pursuant to Section 1(d) of the Note Purchase Agreement, then the Trustee shall give the Depositary (with a copy to the Escrow Agent) a notice of cancellation of such Notice of Purchase Withdrawal relating to such Deposit or Deposits on such Applicable Funding Date.  Upon satisfaction of the conditions specified in the Note Purchase Agreement and the Applicable Participation Agreement, the Trustee shall purchase the applicable Equipment Notes with the proceeds of the withdrawals of one or more Deposits made on the Applicable Funding Date in accordance with the terms of the Deposit Agreement and the Escrow Agreement (or, if the Issuance Date is the Applicable Funding Date with respect to such Applicable Participation Agreement, from a portion of the proceeds of the sale of the Certificates).  The purchase price of such Equipment Notes shall equal the principal amount of such Equipment Notes.  Amounts withdrawn from such Deposit or Deposits in excess of the purchase price of the Equipment Notes or to the extent not applied on the Applicable Funding Date to the purchase price of the Equipment Notes, shall be re-deposited by the Trustee with the Depositary on the Applicable Funding Date in accordance with the terms of the Deposit Agreement.

 

Section 2.02.        Withdrawal of Deposits.  If any Deposits remain outstanding on the Business Day next succeeding the Cut-Off Date, (i) (A) the Trustee shall give the Escrow Agent notice that the Trustee’s obligation to purchase Equipment Notes under the Note Purchase Agreement has terminated and instruct the Escrow Agent to provide a notice of Final Withdrawal to the Depositary substantially in the form of Exhibit B to the Deposit Agreement (the “Final Withdrawal Notice”) and (B) the Trustee will make a demand upon the Company under the

 

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Note Purchase Agreement for an amount equal to the Special Redemption Premium, if applicable, such payment to be made on the Final Withdrawal Date.

 

Section 2.03.        Acceptance by Trustee.  The Trustee, upon the execution and delivery of this Agreement, acknowledges its acceptance of all right, title and interest in and to the Trust Property and declares that the Trustee holds and will hold such right, title and interest for the benefit of all then present and future Certificateholders, upon the trusts herein set forth.  Subject to Section 7.14, the Trustee shall take all actions reasonably necessary to effect the registration of all such Equipment Notes in the name of the Subordination Agent.  By its payment for and acceptance of each Certificate issued to it under this Agreement, each Certificateholder as grantor of the Trust thereby joins in the creation and declaration of the Trust.

 

Section 2.04.        Limitation of Powers.  The Trust is constituted solely for the purpose of making the investment in the Equipment Notes, and, except as set forth herein, the Trustee shall not be authorized or empowered to acquire any other investments or engage in any other activities including without limitation purchasing any Equipment Note issued in connection with the redemption of outstanding Equipment Notes under any Indenture and, in particular, the Trustee shall not be authorized or empowered to do anything that would cause such Trust to fail to qualify as a “grantor trust” for federal income tax purposes (including as subject to this restriction, acquiring any Aircraft (as defined in the respective Indentures) by bidding such Equipment Notes or otherwise, or taking any action with respect to any such Aircraft once acquired).

 

ARTICLE III

THE CERTIFICATES

 

Section 3.01.        Title, Form, Denomination and Execution of Certificates.  (a)  Each Certificate will represent a Fractional Undivided Interest in the Trust, shall be issued in fully registered form without coupons and shall be substantially in the form set forth as Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Trustee or the officers executing such Certificates, as evidenced by the Trustee’s or officer’s execution of the Certificates (provided that such letters, numbers or other marks of identification and such legends or endorsements are in a form acceptable to the Company).  Any portion of the text of any Certificate may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Certificate.  At the Escrow Agent’s request under the Escrow Agreement, the Trustee shall affix the corresponding Escrow Receipt to each Certificate.  In any event, any transfer or exchange of any Certificate shall also effect a transfer or exchange of the related Escrow Receipt.  Prior to the Final Withdrawal Date, no transfer or exchange of any Certificate shall be permitted unless the corresponding Escrow Receipt is attached thereto and also is so transferred or exchanged.  By acceptance of any Certificate to which an Escrow Receipt is attached, each Holder of such a Certificate acknowledges and accepts the restrictions on transfer of the Escrow Receipt set forth herein and in the Escrow Agreement.

 

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(b)           The Certificates shall be issued only in fully registered form without coupons and only in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof, except that one Certificate may be issued in a different denomination.  Each Certificate shall be dated the date of its authentication.  The aggregate Fractional Undivided Interest of Certificates shall not at any time exceed $176,753,000.

 

(c)           The Certificates shall be in registered form and shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner, all as determined by the officers executing such Certificates, as evidenced by their execution of such Certificates.

 

Section 3.02.        Restrictive Legends.  Each Global Certificate shall bear the following legend on the face thereof:

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.

 

Section 3.03.        Authentication of Certificates.  (a) On the Issuance Date, the Trustee shall duly execute, authenticate and deliver Certificates in authorized denominations equaling in the aggregate the amount set forth, with respect to the Trust, in Schedule II to the Underwriting Agreement, evidencing the entire ownership of the Trust, which amount equals the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the Note Purchase Agreement.

 

(b)           No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Certificate

 

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shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder.

 

(c)           Certificates bearing the manual or facsimile signature of an individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Trustee shall be valid and binding obligations of the Trust notwithstanding that such individual has ceased to be so authorized prior to the authentication and delivery of such Certificates or did not hold such office on the date of such Certificates.

 

Section 3.04.        Transfer and Exchange.  The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 7.12 a register (the “Register”) of the Certificates in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of such Certificates and of transfers and exchanges of such Certificates as herein provided.  The Trustee shall initially be the registrar (the “Registrar”) for the purpose of registering such Certificates and transfers and exchanges of such Certificates as herein provided.  The Company, upon notice to the Trustee, may change the Registrar at any time.

 

All Certificates issued upon any registration of transfer or exchange of Certificates shall be valid obligations of the Trust, evidencing the same interest therein, and entitled to the same benefits under this Trust Agreement, as the Certificates surrendered upon such registration of transfer or exchange.

 

A Certificateholder may transfer a Certificate, or request that a Certificate be exchanged for Certificates in an aggregate Fractional Undivided Interest equal to the Fractional Undivided Interest of such Certificate surrendered for exchange of other authorized denominations, by surrender of such Certificate to the Trustee with the form of transfer notice thereon duly completed and executed, and otherwise complying with the terms of this Agreement, including providing evidence of compliance with any restrictions on transfer, in form satisfactory to the Trustee and the Registrar.  No such transfer shall be effected until, and such transferee shall succeed to the rights of a Certificateholder only upon, final acceptance and registration of the transfer by the Registrar in the Register.  Prior to the registration of any transfer by a Certificateholder as provided herein, the Trustee shall treat the person in whose name the Certificate is registered as the owner thereof for all purposes, and the Trustee shall not be affected by notice to the contrary.  Furthermore, DTC shall, by acceptance of a Global Certificate, agree that transfers of beneficial interests in such Global Certificate may be effected only through a book-entry system maintained by DTC (or its agent) and that ownership of a beneficial interest in the Certificate shall be required to be reflected in a book entry.  When Certificates are presented to the Registrar with a request to register the transfer thereof or to exchange them for other authorized denominations of a Certificate in a Fractional Undivided Interest equal to the aggregate Fractional Undivided Interest of Certificates surrendered for exchange, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met.

 

To permit registrations of transfers and exchanges in accordance with the terms, conditions and restrictions hereof, the Trustee shall execute and authenticate Certificates at the Registrar’s request.  No service charge shall be made to a Certificateholder for any registration of

 

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transfer or exchange of Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Certificates.  All Certificates surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed by the Trustee.

 

Section 3.05.        Global, Book-Entry and Definitive Certificates.  (a)   Except for one Certificate that may be issued in a denomination of other than an even multiple of $1,000, except as provided in the following sentence, the Certificates may be issued at the option of the Company in the form of one or more typewritten Global Certificates representing the Book-Entry Certificates of such class, to be delivered to DTC, the initial Clearing Agency, by the Trustee on behalf of the related Trust.  In the case of the issuance of Global Certificates, such Global Certificates delivered to DTC shall initially be registered on the Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Certificate Owner will receive a definitive certificate representing such Certificate Owner’s interest in the Certificates, except as provided in Subsection (d) below. As to Global Certificates, unless and until definitive, fully registered Certificates (the “Definitive Certificates”) have been issued pursuant to Subsection (d) below:

 

(i)            the provisions of this Section 3.05 shall be in full force and effect;

 

(ii)           the Company, the Paying Agent, the Registrar and the Trustee may deal with the Clearing Agency for all purposes (including the making of distributions on the Global Certificates);

 

(iii)          to the extent that the provisions of this Section 3.05 conflict with any other provisions of this Agreement, the provisions of this Section 3.05 shall control;

 

(iv)          the rights of Certificate Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants; and until Definitive Certificates are issued pursuant to Subsection (d) below, the Clearing Agency will make book-entry transfers in respect of the Book-Entry Certificates among the Clearing Agency Participants and receive and transmit distributions of principal, interest and premium, if any, on the Global Certificates to such Clearing Agency Participants;

 

(v)           Global Certificates may be transferred in whole, but not in part, and in the manner provided in Section 3.04, by the Clearing Agency holding such Global Certificates to a nominee of such Clearing Agency, or by such Clearing Agency to a successor Clearing Agency that has been selected or approved by the Company or to a nominee of such successor Clearing Agency; and

 

(vi)          whenever this Agreement requires or permits actions to be taken based upon instructions or directions of Certificateholders evidencing a specified percentage of the Fractional Undivided Interests in the Trust, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Clearing Agency Participants owning or representing, respectively,

 

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such required percentage of the Book-Entry Certificates and has delivered such instructions to the Trustee. Neither the Company nor the Trustee shall have any obligation to determine whether the Clearing Agency has in fact received any such instructions.

 

(b)           Whenever notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued pursuant to Subsection (d) below, the Trustee shall give all such notices and communications specified herein to be given to Certificateholders to the Clearing Agency.

 

(c)           The Trustee shall enter into the applicable Letter of Representations with respect to the Global Certificates and fulfill its responsibilities thereunder.

 

(d)           If with respect to the Global Certificates (i) the Company advises the Trustee in writing that the Clearing Agency that holds such Global Certificates is no longer willing or able to discharge properly its responsibilities and the Trustee or the Company is unable to locate a qualified successor, (ii) the Company, at its option, advises the Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency or (iii) after the occurrence of an Event of Default, Certificate Owners of Book-Entry Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, by Act of such Certificate Owners delivered to the Company and the Trustee, advise the Company, the Trustee and the Clearing Agency through the Clearing Agency Participants in writing that the continuation of a book-entry system through the Clearing Agency Participants is no longer in the best interests of the Certificate Owners, then the Trustee shall notify all Certificate Owners, through the Clearing Agency, of the occurrence of any such event and of the availability of Definitive Certificates. Upon surrender to the Trustee of all the Global Certificates held by the Clearing Agency, accompanied by registration instructions from the Clearing Agency Participants for registration of Definitive Certificates in the names of Certificate Owners, the Trustee shall issue and deliver the Definitive Certificates in accordance with the instructions of the Clearing Agency. Neither the Company, the Registrar, the Paying Agent nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such registration instructions. Upon the issuance of Definitive Certificates, the Trustee shall recognize the Persons in whose names the Definitive Certificates are registered in the Register as Certificateholders hereunder. Neither the Company nor the Trustee shall be liable if the Trustee or the Company is unable to locate a qualified successor Clearing Agency.

 

(e)           Until such time as no Certificates remain Outstanding, the Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 3.05.  The Trustee, if not the Registrar at such time, shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

Section 3.06.        [Intentionally Omitted.]

 

Section 3.07.        Mutilated, Destroyed, Lost or Stolen Certificates.  If (a) any mutilated Certificate is surrendered to the Registrar or the Registrar receives evidence to its satisfaction of

 

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the destruction, loss or theft of any Certificate and (b) there is delivered to the Registrar and the Trustee such security, indemnity or bond, as may be required by them to save each of them harmless, then, in the absence of notice to the Registrar or the Trustee that such destroyed, lost or stolen Certificate has been acquired by a protected purchaser, and provided that the requirements of Section 8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction are met, the Trustee shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or Certificates, in authorized denominations and of like Fractional Undivided Interest and bearing a number not contemporaneously outstanding.

 

In connection with the issuance of any new Certificate under this Section 3.07, the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and the Registrar) connected therewith.

 

Any duplicate Certificate issued pursuant to this Section 3.07 shall constitute conclusive evidence of the appropriate Fractional Undivided Interest in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates.

 

Section 3.08.        Persons Deemed Owners.  Prior to due presentment of a Certificate for registration of transfer, the Trustee, the Registrar and any Paying Agent may treat the Person in whose name any Certificate is registered (as of the day of determination) as the owner of such Certificate for the purpose of receiving distributions pursuant to Article IV and for all other purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent shall be affected by any notice to the contrary.

 

Section 3.09.        Cancellation.  All Certificates surrendered for payment or transfer or exchange shall, if surrendered to the Trustee or any agent of the Trustee other than the Registrar, be delivered to the Registrar for cancellation and shall promptly be canceled by it.  No Certificates shall be authenticated in lieu of or in exchange for any Certificates canceled as provided in this Section, except as expressly permitted by this Agreement.  All canceled Certificates held by the Registrar shall be destroyed and a certification of their destruction delivered to the Trustee.

 

Section 3.10.        Temporary Certificates.  Until Definitive Certificates are ready for delivery, the Trustee shall authenticate temporary Certificates.  Temporary Certificates shall be substantially in the form of Definitive Certificates but may have insertions, substitutions, omissions and other variations determined to be appropriate by the officers executing the temporary Certificates, as evidenced by their execution of such temporary Certificates.  If temporary Certificates are issued, the Trustee will cause Definitive Certificates to be prepared without unreasonable delay.  After the preparation of Definitive Certificates, the temporary Certificates shall be exchangeable for Definitive Certificates upon surrender of the temporary Certificates at the office or agency of the Trustee designated for such purpose pursuant to

 

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Section 7.12, without charge to the Certificateholder.  Upon surrender for cancellation of any one or more temporary Certificates, the Trustee shall execute, authenticate and deliver in exchange therefor a like face amount of Definitive Certificates of authorized denominations.  Until so exchanged, the temporary Certificates shall be entitled to the same benefits under this Agreement as Definitive Certificates.

 

Section 3.11.        Limitation of Liability for Payments.  All payments and distributions made to Certificateholders in respect of the Certificates shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of Article IV of this Agreement.  Each Certificateholder, by its acceptance of a Certificate, agrees that it will look solely to the income and proceeds from the Trust Property for any payment or distribution due to such Certificateholder pursuant to the terms of this Agreement and that it will not have any recourse to the Company, the Trustee, the Loan Trustees, the Liquidity Providers or the Policy Provider, except as otherwise expressly provided herein or in the Intercreditor Agreement.

 

The Company is a party to this Agreement solely for purposes of meeting the requirements of the Trust Indenture Act, and therefore shall not have any right, obligation or liability hereunder (except as otherwise expressly provided herein).

 

Section 3.12.        ERISA Legend.  All Certificates issued pursuant to this Agreement shall bear a legend to the following effect (the “ERISA Legend”) unless the Company and the Trustee determine otherwise consistent with applicable law:

 

“BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.  THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”

 

By acceptance of any Certificate bearing the ERISA Legend, each Holder of such a Certificate acknowledges the restrictions on transfer of such Certificate set forth in this Agreement and agrees that it will transfer such Certificate only as provided in this Agreement.  The Trustee shall not register a transfer of any Certificate unless such transfer complies with the restrictions on transfer, if any, of such Certificate set forth in such legend.

 

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ARTICLE IV

DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS

 

Section 4.01.        Certificate Account and Special Payments Account.  (a) The Trustee shall establish and maintain on behalf of the Certificateholders a Certificate Account as one or more non-interest-bearing accounts.  The Trustee shall hold the Certificate Account in trust for the benefit of the Certificateholders, and shall make or permit withdrawals therefrom only as provided in this Agreement.  On each day when a Scheduled Payment is made to the Trustee under the Intercreditor Agreement, the Trustee upon receipt thereof shall immediately deposit the aggregate amount of such Scheduled Payment in the Certificate Account.

 

(b)           The Trustee shall establish and maintain on behalf of the Certificateholders a Special Payments Account as one or more accounts, which shall be non-interest bearing except as provided in Section 4.04.  The Trustee shall hold the Special Payments Account in trust for the benefit of the Certificateholders and shall make or permit withdrawals therefrom only as provided in this Agreement.  On each day when one or more Special Payments are made to the Trustee under the Intercreditor Agreement and upon the payment of the Special Redemption Premium to the Trustee under the Note Purchase Agreement, the Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of such Special Payments in the Special Payments Account.

 

(c)           The Trustee shall cause the Subordination Agent to present to the related Loan Trustee of each Equipment Note such Equipment Note on the date of its stated final maturity or, in the case of any Equipment Note which is to be redeemed in whole pursuant to the related Indenture, on the applicable redemption date under such Indenture.

 

Section 4.02.        Distributions from Certificate Account and Special Payments Account.  (a) On each Regular Distribution Date or as soon thereafter as the Trustee has confirmed receipt of the payment of all or any part of the Scheduled Payments due on such date, the Trustee shall distribute out of the Certificate Account the entire amount deposited therein pursuant to Section 4.01(a).  There shall be so distributed to each Certificateholder of record on the Record Date with respect to such Regular Distribution Date (other than as provided in Section 11.01 concerning the final distribution) by check mailed to such Certificateholder, at the address appearing in the Register, such Certificateholder’s pro rata share (based on the Fractional Undivided Interest in the Trust held by such Certificateholder) of the total amount in the Certificate Account, except that, with respect to Certificates registered on the Record Date in the name of Cede & Co., as nominee for DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

(b)           On each Special Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes held in the related Trust or realized upon the sale of such Equipment Notes or receipt of the Special Redemption Premium, the Trustee shall distribute out of the Special Payments Account the entire amount of such Special Payment deposited therein pursuant to Section 4.01(b).  There shall be so distributed to each Certificateholder of record on the Record

 

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Date with respect to such Special Distribution Date (other than as provided in Section 11.01 concerning the final distribution) by check mailed to such Certificateholder, at the address appearing in the Register, such Certificateholder’s pro rata share (based on the Fractional Undivided Interest in the Trust held by such Certificateholder) of the total amount in the Special Payments Account on account of such Special Payment, except that, with respect to Certificates registered on the Record Date in the name of Cede & Co., as nominee for DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

(c)           The Trustee shall cause notice of each Special Payment to be mailed to each Certificateholder at his address as it appears in the Register.  In the event of redemption or purchase of Equipment Notes held in the Trust, such notice shall be mailed not less than 20 days prior to the Special Distribution Date for the Special Payment resulting from such redemption or purchase, which Special Distribution Date shall be the date of such redemption or purchase.  In the event of the payment of a Special Redemption Premium by the Company to the Trustee under the Note Purchase Agreement, such notice shall be mailed, together with the notice by the Escrow Paying Agent under Section 2.06 of the Escrow Agreement, not less than 20 days prior to the Special Distribution Date for such amount, which Special Distribution Date shall be the Final Withdrawal Date.  In the case of distributions pursuant to Section 3.7(c) or Section 3.7(e) of the Intercreditor Agreement, the Trustee will mail notice to the Certificateholders stating the Special Distribution Date, the related Record Date, the amount of such distribution and the reason for such distribution.  In the case of any other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that it has received funds for such Special Payment, stating the Special Distribution Date for such Special Payment which shall occur not less than 20 days after the date of such notice and as soon as practicable thereafter.  Notices mailed by the Trustee shall set forth:

 

(i)            the Special Distribution Date and the Record Date therefor (except as otherwise provided in Section 11.01),

 

(ii)           the amount of the Special Payment for each $1,000 face amount Certificate and the amount thereof constituting principal, premium, if any, and interest,

 

(iii)          the reason for the Special Payment, and

 

(iv)          if the Special Distribution Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Certificate.

 

If the amount of (i) premium, if any, payable upon the redemption or purchase of an Equipment Note or (ii) the Special Redemption Premium, if any, has not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be sufficient if the notice sets forth the other amounts to be distributed and states that any premium received will also be distributed.

 

If any redemption of the Equipment Notes held in the Trust is canceled, the Trustee, as soon as possible after learning thereof, shall cause notice thereof to be mailed to each Certificateholder at its address as it appears on the Register.

 

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Section 4.03.        Statements to Certificateholders.  (a) On each Distribution Date, the Trustee will include with each distribution to Certificateholders of a Scheduled Payment or Special Payment, as the case may be, a statement setting forth the information provided below (in the case of a Special Payment, including any Special Redemption Premium, reflecting in part the information provided by the Escrow Paying Agent under the Escrow Agreement).  Such statement shall set forth (per $1,000 face amount Certificate as to (ii), (iii), (iv) and (v) below) the following information:

 

(i)            the aggregate amount of funds distributed on such Distribution Date hereunder and under the Escrow Agreement, indicating the amount allocable to each source including any portion thereof paid by the Liquidity Providers and/or the Policy Provider;

 

(ii)           the amount of such distribution hereunder allocable to principal and the amount allocable to Break Amount (as defined in the Intercreditor Agreement) and premium (including the Special Redemption Premium), if any;

 

(iii)          the amount of such distribution hereunder allocable to interest;

 

(iv)          the amount of such distribution under the Escrow Agreement allocable to interest;

 

(v)           the amount of such distribution under the Escrow Agreement allocable to unused Deposits;

 

(vi)          the Pool Balance and the Pool Factor; and

 

(vii)         Three-Month LIBOR for the current and immediately preceding Interest Periods.

 

With respect to the Certificates registered in the name of Cede & Co., as nominee for DTC, on the Record Date prior to each Distribution Date, the Trustee will request that DTC post on its Internet bulletin board a securities position listing setting forth the names of all Agent Members reflected on DTC’s books as holding interests in the Certificates on such Record Date.  On each Distribution Date, the Trustee shall mail to each such Agent Members the statement described above and will make available additional copies as requested by such Agent Members for forwarding to holders of interests in the Certificates.

 

(b)           Within a reasonable period of time after the end of each calendar year but not later than the latest date permitted by law, the Trustee shall furnish to each Person who at any time during such calendar year was a Certificateholder of record a statement containing the sum of the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar year or, in the event such Person was a Certificateholder of record during a portion of such calendar year, for such portion of such year, and such other items as are readily available to the Trustee and which a Certificateholder shall reasonably request as necessary for the purpose of such Certificateholder’s preparation of its federal income tax returns.  Such statement and such other items shall be prepared on the basis of information supplied to the Trustee by the Agent Members and shall be delivered by the Trustee to such Agent Members to be available for

 

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forwarding by such Agent Members to the holders of interests in the Certificates in the manner described in Section 4.03(a).

 

(c)           Promptly following (i) any change in the information set forth in clauses (x), (y) and (z) below from that set forth in page S-39 of the Prospectus, and (ii) any early redemption or purchase of, or any default in the payment of principal or interest in respect of, any of the Equipment Notes held in the Trust, or any Final Withdrawal, the Trustee shall furnish to Certificateholders of record on such date a statement setting forth (x) the expected Pool Balances for each subsequent Regular Distribution Date following the Delivery Period Termination Date, (y) the related Pool Factors for such Regular Distribution Dates and (z) the expected principal distribution schedule of the Equipment Notes, in the aggregate, held as Trust Property at the date of such notice.  With respect to the Certificates registered in the name of Cede & Co., as nominee for DTC, on the Delivery Period Termination Date, the Trustee will request that DTC post on its Internet bulletin board a securities position listing setting forth the names of all Agent Members reflected on DTC’s books as holding interests in the Certificates on such date.  The Trustee will mail to each such Agent Member the statement described above and will make available additional copies as requested by such Agent Member for forwarding to holders of interests in the Certificates.

 

Section 4.04.        Investment of Special Payment Moneys.  Any money received by the Trustee pursuant to Section 4.01(b) representing a Special Payment which is not distributed on the date received shall, to the extent practicable, be invested in Permitted Investments by the Trustee pending distribution of such Special Payment pursuant to Section 4.02.  Any investment made pursuant to this Section 4.04 shall be in such Permitted Investments having maturities not later than the date that such moneys are required to be used to make the payment required under Section 4.02 on the applicable Special Distribution Date and the Trustee shall hold any such Permitted Investments until maturity.  The Trustee shall have no liability with respect to any investment made pursuant to this Section 4.04, other than by reason of the willful misconduct or negligence of the Trustee.  All income and earnings from such investments shall be distributed on such Special Distribution Date as part of such Special Payment.

 

ARTICLE V

THE COMPANY

 

Section 5.01.        Maintenance of Corporate Existence.  The Company, at its own cost and expense, will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, except as permitted by Section 5.02.

 

Section 5.02.        Consolidation, Merger, etc.  The Company shall not consolidate with or merge into any other Person under circumstances in which the Company is not the surviving corporation, or convey, transfer or lease in one or more transactions all or substantially all of its assets to any other Person, unless:

 

(a)           such Person is organized, existing and in good standing under the Laws of the United States, any State of the United States or the District of Columbia and, upon

 

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consummation of such transaction, such Person will be a U.S. Air Carrier (as defined in the Financing Documents); and

 

(b)           the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease substantially all of the assets of the Company as an entirety shall execute and deliver to the Trustee a duly authorized, valid, binding and enforceable agreement in form and substance reasonably satisfactory to the Trustee containing an assumption by such successor corporation or Person of the due and punctual performance and observance of each covenant and condition of this Agreement, the Other Pass Through Trust Agreement and each Financing Document to be performed or observed by the Company.

 

Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of the assets of the Company as an entirety in accordance with this Section 5.02, the successor corporation or Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if such successor corporation or Person had been named as the Company herein.  No such conveyance, transfer or lease of substantially all of the assets of the Company as an entirety shall have the effect of releasing any successor corporation or Person which shall have become such in the manner prescribed in this Section 5.02 from its liability in respect of this Agreement and any Financing Document to which it is a party.

 

ARTICLE VI

DEFAULT

 

Section 6.01.        Events of Default.  (a) Exercise of Remedies.  Upon the occurrence and during the continuation of any Indenture Default under any Indenture, with ten days’ written notice to the Trustee and each Certificateholder, the Trustee may, to the extent it is the Controlling Party at such time (as determined pursuant to the Intercreditor Agreement), direct the exercise of remedies as provided in the Intercreditor Agreement.

 

(b)           Purchase Rights of Certificateholders.  By acceptance of its Certificate, each Certificateholder agrees that at any time after the occurrence and during the continuation of a Triggering Event,

 

(i)            each Class C Certificateholder shall have the right to purchase all, but not less than all, of the Certificates and the Class G-2 Certificates upon ten days’ written notice to the Trustee, the Other Trustees and each other Class C Certificateholder, provided that (A) if prior to the end of such ten-day period any other Class C Certificateholder notifies such purchasing Class C Certificateholder that such other Class C Certificateholder wants to participate in such purchase, then such other Class C Certificateholder may join with the purchasing Class C Certificateholder to purchase all, but not less than all, of the Certificates and the Class G-2 Certificates pro rata based on the Fractional Undivided Interest in the Class C Trust held by each such Class C Certificateholder and (B) if prior to the end of such ten-day period any other Class C

 

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Certificateholder fails to notify the purchasing Class C Certificateholder of such other Class C Certificateholder’s desire to participate in such a purchase, then such other Class C Certificateholder shall lose its right to purchase the Certificates and the Class G-2 Certificates pursuant to this Section 6.01(b); and

 

(ii)           whether or not any Class C Certificateholders exercise their right to purchase pursuant to clause (i) above, the Policy Provider, if it is then the Controlling Party, shall have the right to purchase all, but not less than all, of the Certificates and the Class G-2 Certificates upon ten days’ written notice to the Trustee, the Other Trustee and the Certificateholders; provided, that if any Class C Certificateholder has previously exercised the right to purchase all of the Class G-1 and Class G-2 Certificates, such holder may refuse to sell the Class G-1 and Class G-2 Certificates to the Policy Provider if all of the holders of the Class G-1 and Class G-2 Certificateholders release the Policy Provider from all of its obligations under the Policies with respect to such Class G-1 and Class G-2 Certificates (and return or cause the return of such Policies to the Policy Provider); provided, further, that such holder may not refuse such sale so long as (x) all Policy Provider Amounts have not been paid in full and (y) sixteen months have passed from the occurrence of the initial Triggering Event.

 

The purchase price with respect to the Certificates and the Class G-2 Certificates shall be equal to the Pool Balance of the Certificates, together with accrued and unpaid interest thereon to the date of such purchase, plus Break Amount, if any, and including any other amounts then due and payable to the Certificateholders under this Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing Document or on or in respect of the Certificates plus the amount payable in connection with the purchase of the Class G-2 Certificates pursuant to Section 6.01(b) of the Other Pass Through Trust Agreement for the Class G-2 Certificates; provided, however, that (i) if such purchase occurs after the record date specified in Section 2.03(b) of the Escrow Agreement relating to the distribution of unused Deposits and accrued and unpaid interest thereunder, such purchase price shall be reduced by the aggregate amount of unused Deposits and interest to be distributed under the Escrow Agreement (which deducted amounts shall remain distributable to, and may be retained by, the Certificateholder as of such Record Date) and (ii) if such purchase occurs after a Record Date, such purchase price shall be reduced by the amount to be distributed hereunder on the related Distribution Date (which deducted amounts shall remain distributable to, and may be retained by, the Certificateholder as of such Record Date); provided, further, that no such purchase of Certificates shall be effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant to the terms of this Agreement all of the Certificates and pursuant to the Other Pass Through Trust Agreement relating to the Class G-2 Certificates, all of the Class G-2 Certificates.  Each payment of the purchase price of the Certificates referred to in the first sentence hereof shall be made to an account or accounts designated by the Trustee and relevant Other Trustee, as applicable, and each such purchase shall be subject to the terms of this Section 6.01(b). Each Certificateholder agrees by its acceptance of its Certificate that it will, subject to Section 3.04 hereof, upon payment from such Class C Certificateholder(s) or the Policy Provider, as the case may be, of the purchase price set forth in the first sentence of this paragraph, forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without recourse, representation or warranty of any kind except for its own acts), all of the right, title, interest and obligation of such Certificateholder in this Agreement, the Escrow Agreement, the

 

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Deposit Agreement, the Intercreditor Agreement, the Liquidity Facilities, the Policy, the Financing Documents and all Certificates and Escrow Receipts held by such Certificateholder (excluding all right, title and interest under any of the foregoing to the extent such right, title or interest is with respect to an obligation not then due and payable as respects any action or inaction or state of affairs occurring prior to such sale) and the purchaser shall assume all of such Certificateholder’s obligations under this Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facilities, the Policy, the Financing Documents and all such Certificates and Escrow Receipts.  The Certificates will be deemed to be purchased on the date payment of the purchase price is made notwithstanding the failure of the Certificateholders to deliver any Certificates (whether in the form of Definitive Certificates or beneficial interests in Global Certificates) and, upon such a purchase, (i) the only rights of the Certificateholders will be to deliver the Certificates to the purchaser(s) and receive the purchase price for such Certificates and (ii) if the purchaser(s) shall so request, such Certificateholder will comply with all the provisions of Section 3.04 hereof to enable new Certificates to be issued to the purchaser in such denominations as it shall request.  All charges and expenses in connection with the issuance of any such new Certificates shall be borne by the purchaser thereof.

 

As used in this Section 6.01(b), the terms “Class C Certificate”, “Class C Certificateholder”, “Class C Trust”, and “Class C Trustee” shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

Section 6.02.        Incidents of Sale of Equipment Notes.  Upon any sale of all or any part of the Equipment Notes made either under the power of sale given under this Agreement or otherwise for the enforcement of this Agreement, the following shall be applicable:

 

(1)           Certificateholders and Trustee May Purchase Equipment Notes.  Any Certificateholder, the Trustee in its individual or any other capacity or any other Person may bid for and purchase any of the Equipment Notes, and upon compliance with the terms of sale, may hold, retain, possess and dispose of such Equipment Notes in their own absolute right without further accountability.

 

(2)           Receipt of Trustee Shall Discharge Purchaser.  The receipt of the Trustee making such sale shall be a sufficient discharge to any purchaser for his purchase money, and, after paying such purchase money and receiving such receipt, such purchaser or its personal representative or assigns shall not be obliged to see to the application of such purchase money, or be in any way answerable for any loss, misapplication or non-application thereof.

 

(3)           Application of Moneys Received upon Sale.  Any moneys collected by the Trustee upon any sale made either under the power of sale given by this Agreement or otherwise for the enforcement of this Agreement shall be applied as provided in Section 4.02.

 

Section 6.03.        Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit.  If there shall be a failure to make payment of the principal of, premium, if any, or interest on any Equipment Note, then the Trustee, in its own name and as trustee of an express trust, as holder of such Equipment Notes, to the extent permitted by and in accordance with the terms of the

 

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Intercreditor Agreement and the Financing Documents, shall be entitled and empowered to institute any suits, actions or proceedings at law, in equity or otherwise, for the collection of the sums so due and unpaid on such Equipment Notes and may prosecute any such claim or proceeding to judgment or final decree with respect to the whole amount of any such sums so due and unpaid.

 

Section 6.04.        Control by Certificateholders.  Subject to Section 6.03 and the Intercreditor Agreement, the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee with respect to the Trust or pursuant to the terms of the Intercreditor Agreement, or exercising any trust or power conferred on the Trustee under this Agreement or the Intercreditor Agreement, including any right of the Trustee as Controlling Party under the Intercreditor Agreement or as holder of the Equipment Notes, provided that:

 

(1)           such Direction shall not be in conflict with any rule of law or with this Agreement and would not involve the Trustee in personal liability or expense,

 

(2)           the Trustee shall not determine that the action so directed would be unjustly prejudicial to the Certificateholders not taking part in such Direction, and

 

(3)           the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such Direction.

 

Section 6.05.        Waiver of Past Defaults.  Subject to the Intercreditor Agreement, the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust (i) may on behalf of all of the Certificateholders waive any past Event of Default hereunder and its consequences or (ii) if the Trustee is the Controlling Party, may direct the Trustee to instruct the applicable Loan Trustee to waive any past Indenture Default under any Indenture and its consequences, and thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee with respect thereto, except a default:

 

(1)           in the deposit of any Scheduled Payment or Special Payment under Section 4.01 or in the distribution of any payment under Section 4.02 on the Certificates, or

 

(2)           in the payment of the principal of (premium, if any) or interest on the Equipment Notes, or

 

(3)           in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of each Certificateholder holding an Outstanding Certificate affected thereby.

 

Upon any such waiver, such default shall cease to exist with respect to the Certificates and any Event of Default arising therefrom shall be deemed to have been cured for every purpose and any direction given by the Trustee on behalf of the Certificateholders to the relevant Loan Trustee shall be annulled with respect thereto; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.  Upon any such

 

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waiver, the Trustee shall vote the Equipment Notes issued under the relevant Indenture to waive the corresponding Indenture Default.

 

Section 6.06.        Right of Certificateholders to Receive Payments Not to Be Impaired.  Anything in this Agreement to the contrary notwithstanding, including, without limitation, Section 6.07 hereof, but subject to the Intercreditor Agreement, the right of any Certificateholder to receive distributions of payments required pursuant to Section 4.02 hereof on the Certificates when due, or to institute suit for the enforcement of any such payment on or after the applicable Regular Distribution Date or Special Distribution Date, shall not be impaired or affected without the consent of such Certificateholder.

 

Section 6.07.        Certificateholders May Not Bring Suit Except Under Certain Conditions.  A Certificateholder shall not have the right to institute any suit, action or proceeding at law or in equity or otherwise with respect to this Agreement, for the appointment of a receiver or for the enforcement of any other remedy under this Agreement, unless:

 

(1)           such Certificateholder previously shall have given written notice to the Trustee of a continuing Event of Default;

 

(2)           Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than 25% of the Trust shall have requested the Trustee in writing to institute such action, suit or proceeding and shall have offered to the Trustee indemnity as provided in Section 7.03(e);

 

(3)           the Trustee shall have refused or neglected to institute such an action, suit or proceeding for 60 days after receipt of such notice, request and offer of indemnity; and

 

(4)           no direction inconsistent with such written request shall have been given to the Trustee during such 60-day period by Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust.

 

It is understood and intended that no one or more of the Certificateholders shall have any right in any manner whatsoever hereunder or under the Certificates to (i) surrender, impair, waive, affect, disturb or prejudice any property in the Trust Property or the lien of any Indenture on any property subject thereto, or the rights of the Certificateholders or the holders of the Equipment Notes, (ii) obtain or seek to obtain priority over or preference with respect to any other such Certificateholder or (iii) enforce any right under this Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all the Certificateholders subject to the provisions of this Agreement.

 

Section 6.08.        Remedies Cumulative.  Every remedy given hereunder to the Trustee or to any of the Certificateholders shall not be exclusive of any other remedy or remedies, and every such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter given by statute, law, equity or otherwise.

 

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ARTICLE VII

THE TRUSTEE

 

Section 7.01.        Certain Duties and Responsibilities.  (a) Except during the continuation of an Event of Default, the Trustee undertakes to perform such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee.

 

(b)           In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of its own affairs.

 

(c)           No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

(1)           this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; and

 

(2)           the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.

 

(d)           Whether or not herein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

Section 7.02.        Notice of Defaults.  As promptly as practicable after, and in any event within 90 days after, the occurrence of any default (as such term is defined below) hereunder, the Trustee shall transmit by mail to the Company, the Loan Trustees and the Certificateholders in accordance with Section 313(c) of the Trust Indenture Act, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default on the payment of the principal, premium, if any, or interest on any Equipment Note held in the Trust, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the best interests of the Certificateholders.  For the purpose of this Section, the term “default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.

 

Section 7.03.        Certain Rights of Trustee.  Subject to the provisions of Section 315 of the Trust Indenture Act:

 

(a)           the Trustee may rely and shall be protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice,

 

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request, direction, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(b)           any request or direction of the Company mentioned herein shall be sufficiently evidenced by a written description of the subject matter thereof accompanied by an Officer’s Certificate and an Opinion of Counsel as provided in Section 1.02 of this Agreement;

 

(c)           whenever in the administration of this Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate of the Company or any Loan Trustee;

 

(d)           the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e)           the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the Direction of any of the Certificateholders pursuant to this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the cost, expenses and liabilities which might be incurred by it in compliance with such Direction;

 

(f)            the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document;

 

(g)           the Trustee may execute any of the trusts or powers under this Agreement or perform any duties under this Agreement either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it under this Agreement;

 

(h)           the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and

 

(i)            the Trustee shall not be required to expend or risk its own funds in the performance of any of its duties under this Agreement, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.

 

Section 7.04.        Not Responsible for Recitals or Issuance of Certificates.  The recitals contained herein and in the Certificates, except the certificates of authentication, shall not be taken as the statements of the Trustee, and the Trustee assumes no responsibility for their correctness.  Subject to Section 7.15, the Trustee makes no representations as to the validity or

 

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sufficiency of this Agreement, any Equipment Notes, the Intercreditor Agreement, the Deposit Agreement, the Escrow Agreement, the Certificates or any other Financing Document, except that the Trustee hereby represents and warrants that this Agreement has been, and the Intercreditor Agreement, the Note Purchase Agreement, the Escrow Agreement and each Certificate will be, executed, authenticated and delivered by one of its officers who is duly authorized to execute, authenticate and deliver such document on its behalf.

 

Section 7.05.        May Hold Certificates.  The Trustee, any Paying Agent, Registrar or any of their Affiliates or any other agent in their respective individual or any other capacity may become the owner or pledgee of Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act, if applicable, may otherwise deal with the Company or the Loan Trustees with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.

 

Section 7.06.        Money Held in Trust.  Money held by the Trustee or the Paying Agent in trust hereunder need not be segregated from other funds except to the extent required herein or by law and neither the Trustee nor the Paying Agent shall have any liability for interest upon any such moneys except as provided for herein.

 

Section 7.07.        Compensation and Reimbursement.  The Company agrees:

 

(1)           to pay, or cause to be paid, to the Trustee from time to time reasonable compensation for all services rendered by it hereunder as set forth in a written fee letter dated the date hereof between the Company and the Trustee, which letter is incorporated herein by reference (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(2)           except as otherwise expressly provided herein, to reimburse, or cause to be reimbursed, the Trustee upon its request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its undertaking its normal administrative functions, or its negligence, willful misconduct or bad faith or as may be incurred due to the Trustee’s breach of its representations and warranties set forth in Section 7.15; and

 

(3)           to indemnify, or cause to be indemnified, the Trustee for, and to hold it harmless against, any loss, liability, expense or Tax (other than for or with respect to any Unindemnified Tax) incurred without gross negligence, willful misconduct or bad faith, on its part, arising out of or in connection with the acceptance or administration of this Trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, except for any such loss, liability or expense incurred by reason of the Trustee’s breach of its covenants hereunder or under any Financing Document to which it is a party or its representations and warranties set forth in Section 7.15 or in any other Financing Document, the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect hereto or any of the

 

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Financing Documents, which amendments, supplements, waivers or consents are not required pursuant to the terms of the Financing Documents and not requested by the Company, any loss of tax benefits, any Unindemnified Tax, or increase in tax liability under any tax law whether or not the Company is required to indemnify thereof or pursuant to this Agreement or any costs associated with overhead or normal administration hereunder or any voluntary resignation pursuant to Section 7.09.

 

With respect to paragraph (3) above, the Trustee shall notify the Company promptly of any claim for which it may seek indemnity and the Company shall make payment on any such claim within 30 days of written demand thereof (delivered together with supporting documentation).  The Company shall defend the claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel with the consent of the Company and the Company will pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made, in settlement or otherwise, without its consent.

 

With respect to any Tax other than an Unindemnified Tax, the Trustee shall be entitled to reimbursement from, and shall have a lien prior to the Certificates upon, the Trust Property for any such Tax incurred without negligence, bad faith or willful misconduct, on its part, arising out of or in connection with the acceptance or administration of such Trust (other than any Tax attributable to the Trustee’s compensation for serving as such), including any costs and expenses incurred in contesting the imposition of any such Tax.  If the Trustee reimburses itself from the Trust Property of such Trust for any such Tax, it will mail a brief report within 30 days setting forth the circumstances thereof to all Certificateholders as their names and addresses appear in the Register.

 

Section 7.08.        Corporate Trustee Required; Eligibility.  There shall at all times be a Trustee hereunder which shall be eligible to act as a trustee under Section 310(a) of the Trust Indenture Act and shall have a combined capital and surplus of at least $75,000,000 (or a combined capital and surplus in excess of $5,000,000 and the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States, any state or territory thereof or of the District of Columbia and having a combined capital and surplus of at least $75,000,000).  If such corporation publishes reports of conditions at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 7.08, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published.

 

In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.08 to act as Trustee, the Trustee shall resign immediately as Trustee in the manner and with the effect specified in Section 7.09.

 

Section 7.09.        Resignation and Removal; Appointment of Successor.  (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 7.10.

 

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(b)           The Trustee may resign at any time as trustee by giving prior written notice thereof to the Company, the Authorized Agents and the Loan Trustees.  If an instrument of acceptance by a successor Trustee shall not have been delivered to the Company, the Authorized Agents, the Loan Trustees and the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(c)           The Trustee may be removed at any time by Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust delivered to the Trustee and to the Company and the Loan Trustees.

 

(d)           If at any time:

 

(1)           the Trustee shall fail to comply with Section 310 of the Trust Indenture Act, if applicable, after written request therefor by the Company or by any Certificateholder who has been a bona fide Certificateholder for at least six months; or

 

(2)           the Trustee shall cease to be eligible under Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Certificateholder; or

 

(3)           the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any case, (i) the Company may remove the Trustee or (ii) any Certificateholder who has been a bona fide Certificateholder for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(e)           If a Responsible Officer of the Trustee shall obtain actual knowledge of an Avoidable Tax which has been or is likely to be asserted, the Trustee shall promptly notify the Company and shall, within 30 days of such notification, resign hereunder unless within such 30-day period the Trustee shall have received notice that the Company has agreed to pay such tax.  The Company shall promptly appoint a successor Trustee in a jurisdiction where there are no Avoidable Taxes.

 

(f)            If the Trustee shall resign, be removed or become incapable of acting or if a vacancy shall occur in the office of the Trustee for any cause, the Company shall promptly appoint a successor Trustee.  If, within one year after such resignation, removal or incapability, or other occurrence of such vacancy, a successor Trustee shall be appointed by Direction of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust delivered to the Company, the Loan Trustees and the retiring Trustee, and the Company approves such appointment, which approval shall not be unreasonably withheld, then the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor

 

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Trustee appointed as provided above.  If no successor Trustee shall have been so appointed as provided above and accepted appointment in the manner hereinafter provided, any Certificateholder who has been a bona fide Certificateholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(g)           The successor Trustee shall give notice of the resignation and removal of the Trustee and appointment of the successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the Certificateholders as their names and addresses appear in the Register.  Each notice shall include the name of such successor Trustee and the address of its Corporate Trust Office.

 

Section 7.10.        Acceptance of Appointment by Successor.  Every successor Trustee appointed hereunder shall execute and deliver to the Company, the Authorized Agents and the Loan Trustees and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall execute and deliver an instrument transferring to such successor Trustee all such rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all Trust Property held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 7.07.  Upon request of any such successor Trustee, the Company, the retiring Trustee and such successor Trustee shall execute and deliver any and all instruments containing such provisions as shall be necessary or desirable to transfer and confirm to, and for more fully and certainly vesting in, such successor Trustee all such rights, powers and trusts.

 

No institution shall accept its appointment as a Trustee hereunder unless at the time of such acceptance such institution shall be qualified and eligible under this Article VII.

 

Section 7.11.        Merger, Conversion, Consolidation or Succession to Business.  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article VII, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Certificates shall have been executed or authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such execution or authentication and deliver the Certificates so executed or authenticated with the same effect as if such successor Trustee had itself executed or authenticated such Certificates.

 

Section 7.12.        Maintenance of Agencies.  (a) There shall at all times be maintained an office or agency in the location set forth in Section 12.03 where Certificates may be presented or surrendered for registration of transfer or for exchange, and for payment thereof and where notices and demands to or upon the Trustee in respect of such certificates or this Agreement may

 

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be served; provided, however, that, if it shall be necessary that the Trustee maintain an office or agency in another location (e.g., the Certificates shall be represented by Definitive Certificates and shall be listed on a national securities exchange), the Trustee will make all reasonable efforts to establish such an office or agency.  Written notice of the location of each such other office or agency and of any change of location thereof shall be given by the Trustee to the Company, the Loan Trustees (in the case of any Loan Trustee, at its address specified in the Financing Documents or such other address as may be notified to the Trustee) and the Certificateholders.  In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee.

 

(b)           There shall at all times be a Registrar and a Paying Agent hereunder with respect to the Certificates.  Each such Authorized Agent shall be a bank or trust company, shall be a corporation organized and doing business under the laws of the United States or any state, with a combined capital and surplus of at least $75,000,000, or, if the Trustee shall be acting as the Registrar or Paying Agent hereunder, a corporation having a combined capital and surplus in excess of $5,000,000, the obligations of which are guaranteed by a corporation organized and doing business under the laws of the United States or any state, with a combined capital and surplus of at least $75,000,000, and shall be authorized under such laws to exercise corporate trust powers, subject to supervision by Federal or state authorities.  The Trustee shall initially be the Paying Agent and, as provided in Section 3.04, Registrar hereunder with respect to the Certificates.  Each Registrar shall furnish to the Trustee, at stated intervals of not more than six months, and at such other times as the Trustee may request in writing, a copy of the Register maintained by such Registrar.

 

(c)           Any corporation into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor corporation.

 

(d)           Any Authorized Agent may at any time resign by giving written notice of resignation to the Trustee, the Company and the Loan Trustees.  The Company may, and at the request of the Trustee shall, at any time terminate the agency of any Authorized Agent by giving written notice of termination to such Authorized Agent and to the Trustee.  Upon the resignation or termination of an Authorized Agent or in case at any time any such Authorized Agent shall cease to be eligible under this Section (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed), the Company shall promptly appoint one or more qualified successor Authorized Agents, reasonably satisfactory to the Trustee, to perform the functions of the Authorized Agent which has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section.  The Company shall give written notice of any such appointment made by it to the Trustee and the Loan Trustees; and in each case the Trustee shall mail notice of such appointment to all Certificateholders as their names and addresses appear on the Register.

 

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(e)           The Company agrees to pay, or cause to be paid, from time to time to each Authorized Agent reasonable compensation for its services and to reimburse it for its reasonable expenses as set forth in the letter agreement referred to in Section 7.07 hereof.

 

Section 7.13.        Money for Certificate Payments to Be Held in Trust.  All moneys deposited with any Paying Agent for the purpose of any payment on Certificates shall be deposited and held in trust for the benefit of the Certificateholders entitled to such payment, subject to the provisions of this Section.  Moneys so deposited and held in trust shall constitute a separate trust fund for the benefit of the Certificateholders with respect to which such money was deposited.

 

The Trustee may at any time, for the purpose of obtaining the satisfaction and discharge of this Agreement or for any other purpose, direct any Paying Agent to pay to the Trustee all sums held in trust by such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Section 7.14.        Registration of Equipment Notes in Name of Subordination Agent.  The Trustee agrees that all Equipment Notes to be purchased by the Trust shall be issued in the name of the Subordination Agent or its nominee and held by the Subordination Agent in trust for the benefit of the Certificateholders, or, if not so held, the Subordination Agent or its nominee shall be reflected as the owner of such Equipment Notes in the register of the issuer of such Equipment Notes.

 

Section 7.15.        Representations and Warranties of Trustee.  The Trustee hereby represents and warrants that:

 

(a)           the Trustee is a Delaware banking corporation organized and validly existing in good standing under the laws of the State of Delaware;

 

(b)           the Trustee has full power, authority and legal right to execute, deliver, and perform this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and the Financing Documents to which it is a party and has taken all necessary action to authorize the execution, delivery, and performance by it of this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and the Financing Documents to which it is a party;

 

(c)           the execution, delivery and performance by the Trustee of this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement and the Financing Documents to which it is a party (i) will not violate any provision of United States federal law or the law of the State of Delaware where it is located governing the banking and trust powers of the Trustee or any order, writ, judgment, or decree of any court, arbitrator or governmental authority applicable to the Trustee or any of its assets, (ii) will not violate any provision of the articles of association or by-laws of the Trustee, or (iii) will not violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of any lien on any properties included in the Trust Property pursuant to the

 

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provisions of any mortgage, indenture, contract, agreement or other undertaking to which it is a party, which violation, default or lien could reasonably be expected to have an adverse effect on the Trustee’s performance or ability to perform its duties hereunder or thereunder or on the transactions contemplated herein or therein;

 

(d)           the execution, delivery and performance by the Trustee of this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, and the Financing Documents to which it is a party will not require the authorization, consent, or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any governmental authority or agency of the United States or the State of Delaware regulating the banking and corporate trust activities of the Trustee;

 

(e)           this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, and the Financing Documents to which it is a party have been duly executed and delivered by the Trustee and constitute the legal, valid, and binding agreements of the Trustee, enforceable against it in accordance with their respective terms, provided that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) general principles of equity, regardless of whether applied in a proceeding in equity or at law; and

 

(f)            the statements made by it in a Statement of Eligibility on Form T-1 supplied or to be supplied to the Company in connection with the registration of any Certificates are and will be true and accurate subject to the qualifications set forth therein; and that such statement complies and will comply in all material respects with the requirements of the Trust Indenture Act and the Securities Act.

 

Section 7.16.        Withholding Taxes Information Reporting.  (a) The Trustee, as trustee of the grantor trust created by this Agreement, shall exclude and withhold from each distribution of principal, premium, if any, and interest and other amounts due under this Agreement or under the Certificates any and all withholding taxes applicable thereto as required by law.  The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Certificates, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Certificateholders, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each such Certificateholder appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Certificateholders may reasonably request from time to time.  The Trustee agrees to file any other information reports as it may be required to file under United States law.

 

(b)           In the event the Trust is characterized as a partnership for U.S. federal income tax purposes, the Company shall (i) file, mail or deliver (or cause to be filed, mailed or delivered) Internal Revenue Form 1065 and any other federal, state or local income tax returns or reports required to be filed, delivered or mailed by the Trust to any taxing authority or any person treated as a partner and (ii) indemnify the Trust against any costs, expenses or penalties imposed on the Trust arising from the classification of the Trust as a partnership.

 

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Section 7.17.        Trustee’s Liens.  The Trustee in its individual capacity agrees that it will at its own cost and expense promptly take any action as may be necessary to duly discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance, security interest or claim (“Trustee’s Liens”) on or with respect to the Trust Property which is attributable to the Trustee either (i) in its individual capacity and which is unrelated to the transactions contemplated by this Agreement, the Intercreditor Agreement, the Note Purchase Agreement or the Financing Documents, or (ii) as Trustee hereunder or in its individual capacity and which arises out of acts or omissions on the part of the Trustee which are not contemplated by this Agreement.

 

Section 7.18.        Preferential Collection of Claims.  The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act.  If the Trustee shall resign or be removed as Trustee, it shall be subject to Section 311(a) of the Trust Indenture Act to the extent provided therein.

 

ARTICLE VIII

CERTIFICATEHOLDERS’ LISTS AND REPORTS BY TRUSTEE

 

Section 8.01.        The Company to Furnish Trustee with Names and Addresses of Certificateholders.  The Company will furnish to the Trustee within 15 days after each Record Date with respect to a Scheduled Payment, and at such other times as the Trustee may request in writing within 30 days after receipt by the Company of any such request, a list, in such form as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and addresses of the Certificateholders, in each case as of a date not more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee is the sole Registrar, no such list need be furnished; and provided further, however, that no such list need be furnished for so long as a copy of the Register is being furnished to the Trustee pursuant to Section 7.12.

 

Section 8.02.        Preservation of Information Communications to Certificateholders.  The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Certificateholders contained in the most recent list furnished to the Trustee as provided in Section 7.12 or Section 8.01, as the case may be, and the names and addresses of Certificateholders received by the Trustee in its capacity as Registrar, if so acting.  The Trustee may destroy any list furnished to it as provided in Section 7.12 or Section 8.01, as the case may be, upon receipt of a new list so furnished.

 

Section 8.03.        Reports by Trustee.  Within 60 days after May 15 of each year commencing with the first full year following the issuance of the Certificates, the Trustee shall transmit to the Certificateholders, as provided in Section 313(c) of the Trust Indenture Act, a brief report dated as of such May 15, if required by Section 313(a) of the Trust Indenture Act.

 

Section 8.04.        Reports by the Company.  The Company shall:

 

(a)           file with the Trustee, within 30 days after the Company is required to file the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by

 

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rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the SEC, in accordance with rules and regulations prescribed by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations;

 

(b)           file with the Trustee and the SEC, in accordance with the rules and regulations prescribed by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Agreement, as may be required by such rules and regulations, including, in the case of annual reports, if required by such rules and regulations, certificates or opinions of independent public accountants, conforming to the requirements of Section 1.02;

 

(c)           transmit to all Certificateholders, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act such summaries of any information, documents and reports required to be filed by the Company pursuant to Subsections (a) and (b) of this Section 8.04 as may be required by rules and regulations prescribed by the SEC; and

 

(d)           furnish to the Trustee, not less often than annually, a brief certificate from the principal executive officer, principal financial officer, any Vice President (or more senior ranking officer) or the principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Agreement (it being understood that for purposes of this paragraph (d), such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Agreement).

 

ARTICLE IX

SUPPLEMENTAL AGREEMENTS

 

Section 9.01.        Supplemental Agreements Without Consent of Certificateholders.  Without the consent of the Certificateholders, the Company may (but will not be required to), and the Trustee (subject to Section 9.03) shall, at the Company’s request, at any time and from time to time, enter into one or more agreements supplemental hereto or, if applicable, to the Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the Deposit Agreement, the Policy, the Policy Provider Agreement or any Liquidity Facility in form satisfactory to the Trustee, for any of the following purposes:

 

(1)           to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein contained or of the Company’s obligations under the Note Purchase Agreement, the Policy Provider Agreement or any Liquidity Facility; or

 

(2)           to add to the covenants of the Company for the benefit of the Certificateholders, or to surrender any right or power conferred upon the Company in this

 

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Agreement, the Note Purchase Agreement, the Policy, the Policy Provider Agreement or any Liquidity Facility; or

 

(3)           to correct or supplement any provision in this Agreement, the Intercreditor Agreement, the Escrow Agreement, the Deposit Agreement, the Note Purchase Agreement, the Policy, the Policy Provider Agreement or any Liquidity Facility which may be defective or inconsistent with any other provision herein or therein or to cure any ambiguity or correct any mistake or to modify any other provision with respect to matters or questions arising under this Agreement, the Escrow Agreement, the Deposit Agreement, the Note Purchase Agreement, the Intercreditor Agreement, the Policy, the Policy Provider Agreement or any Liquidity Facility, provided that any such action shall not materially adversely affect the interests of the Certificateholders; or

 

(4)           to modify, eliminate or add to the provisions of this Agreement to such extent as shall be necessary to continue the qualification of this Agreement (including any supplemental agreement) under the Trust Indenture Act or under any similar Federal statute hereafter enacted, and to add to this Agreement such other provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this instrument was executed or any corresponding provision in any similar Federal statute hereafter enacted; or

 

(5)           to evidence and provide for the acceptance of appointment under thus Agreement by the Trustee of a successor Trustee and to add to or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the Trust, pursuant to the requirements of Section 7.10; or

 

(6)           to provide the information required under Section 7.12 and Section 12.03 as to the Trustee;

 

provided, however, that no such supplemental agreement shall adversely affect the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended, for U.S. federal income tax purposes.

 

Section 9.02.        Supplemental Agreements with Consent of Certificateholders.  With the consent of the Certificateholders holding Certificates (including consents obtained in connection with a tender offer or exchange offer for the Certificates) evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust, by Direction of said Certificateholders delivered to the Company and the Trustee and the consent of the Policy Provider, the Company may, and the Trustee (subject to Section 9.03) shall, enter into an agreement or agreements for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement, the Intercreditor Agreement, any Liquidity Facility, the Policy and the Policy Provider Agreement, the Escrow Agreement, the Deposit Agreement or the Note Purchase Agreement to the extent applicable to such Certificateholders or of modifying in any manner the rights and obligations of such Certificateholders under this Agreement, the Intercreditor Agreement, any Liquidity Facility, the Policy and the Policy Provider Agreement, the Escrow Agreement, the Deposit Agreement or the

 

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Note Purchase Agreement; provided, however, that no such agreement shall, without the consent of the Certificateholder of each Outstanding Certificate affected thereby:

 

(1)           reduce in any manner the amount of, or delay the timing of, any receipt by the Trustee (or, with respect to the Deposits, the Certificateholders) of payments on the Equipment Notes or other Trust Property held in the Trust or on the Deposits or distributions that are required to be made herein on any Certificate, or change any date of payment on any Certificate, or change the place of payment where, or the coin or currency in which, any Certificate is payable, or impair the right to institute suit for the enforcement of any such payment or distribution on or after the Regular Distribution Date or Special Distribution Date applicable thereto; or

 

(2)           permit the disposition of any Equipment Note included in the Trust Property except as permitted by this Agreement or the Intercreditor Agreement, or otherwise deprive such Certificateholder of the benefit of the ownership of the Equipment Notes in the Trust; or

 

(3)           reduce the specified percentage of the aggregate Fractional Undivided Interests of the Trust which is required for any such supplemental agreement, or reduce such specified percentage required for any waiver of compliance with certain provisions of this Agreement or certain defaults hereunder and their consequences provided for in this Agreement; or

 

(4)           waive, amend or modify Section 2.4, or 3.2 of the Intercreditor Agreement in a manner adverse to the Certificateholders; or

 

(5)           modify any of the provisions of this Section 9.02 or Section 6.05, except to increase any such percentage or to provide that certain other provisions of this Agreement cannot be modified or waived without the consent of the Certificateholder of each Certificate affected thereby; or

 

(6)           terminate or modify the Policy; or

 

(7)           adversely affect the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended, for U.S. federal income tax purposes.

 

It shall not be necessary for any Direction of Certificateholders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Direction shall approve the substance thereof.

 

Section 9.03.        Documents Affecting Immunity or Indemnity.  Except for the performance of its covenants herein, if in the opinion of the Trustee any document required to be executed by it pursuant to the terms of Section 9.01 or 9.02 affects adversely any interest, right, duty, immunity or indemnity in favor of the Trustee under this Agreement, the Trustee may in its discretion decline to execute such document.

 

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Section 9.04.        Execution of Supplemental Agreements.  In executing, or accepting the additional trusts created by, any agreement permitted by this Article or the modifications thereby of the trusts created by this Agreement, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement.

 

Section 9.05.        Effect of Supplemental Agreements.  Upon the execution of any agreement supplemental to this Agreement under this Article, this Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of this Agreement for all purposes; and every Holder of a Certificate theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

Section 9.06.        Conformity with Trust Indenture Act.  Every supplemental agreement executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

Section 9.07.        Reference in Certificates to Supplemental Agreements.  Certificates authenticated and delivered after the execution of any supplemental agreement pursuant to this Article may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental agreement; and, in such case, suitable notation may be made upon Outstanding Certificates after proper presentation and demand.

 

ARTICLE X

AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS

 

Section 10.01.      Amendments and Supplements to Indentures and Financing Documents.  In the event that the Trustee, as holder (or beneficial owner through the Subordination Agent) of any Equipment Note in trust for the benefit of the Certificateholders or as Controlling Party under the Intercreditor Agreement, receives (directly or indirectly through the Subordination Agent) a request for a consent to any amendment, modification, waiver or supplement under any Indenture, any other Financing Document, any Equipment Note or any other related document, the Trustee shall forthwith send a notice of such proposed amendment, modification, waiver or supplement to each Certificateholder registered on the Register as of the date of such notice and the Policy Provider.  The Trustee shall request from the Policy Provider or if a Policy Provider Default has occurred and is continuing, Certificateholders a Direction as to (a) whether or not to take or refrain from taking (or direct the Subordination Agent to take or refrain from taking) any action which a holder of such Equipment Note or as Controlling Party has the option to direct, (b) whether or not to give or execute (or direct the Subordination Agent to give or execute) any waivers, consents, amendments, modifications or supplements as a holder of such Equipment Note or a Controlling Party and (c) how to vote (or direct the Subordination Agent to vote) any Equipment Note if a vote has been called for with respect thereto.  Provided such a request for Certificateholder Direction shall have been made, in directing any action or casting any vote or giving any consent as the holder of any Equipment Note (or in directing the Subordination Agent in any of the foregoing), (i) other than as Controlling Party, the Trustee shall vote for or give consent to any such action with respect to such Equipment Note in the same proportion as that of (A) the aggregate face amounts of all Certificates actually voted in favor of or for giving consent

 

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to such action by such Direction of Certificateholders to (B) the aggregate face amount of all Outstanding Certificates and (ii) as Controlling Party, the Trustee shall vote jointly with the Class G-2 Trustee (as defined in the Intercreditor Agreement) as directed in such Certificateholder Direction by the Certificateholders and Class G-2 Certificateholders evidencing a Fractional Undivided Interest (as defined herein and in the Class G-2 Trust Agreement (as defined in the Intercreditor Agreement)) aggregating not less than a majority in interest in the Trust and the Class G-2 Trust (as defined in the Intercreditor Agreement), voting as one class.  For purposes of the immediately preceding sentence, a Certificate shall have been “actually voted” if the Holder of such Certificate has delivered to the Trustee an instrument evidencing such Holder’s consent to such Direction prior to two Business Days before the Trustee directs such action or casts such vote or gives such consent.  Notwithstanding the foregoing, but subject to Section 6.04 and the Intercreditor Agreement, the Trustee may, in its own discretion and at its own direction, consent and notify the relevant Loan Trustee of such consent (or direct the Subordination Agent to consent and notify the Loan Trustee of such consent) to any amendment, modification, waiver or supplement under the relevant Indenture, any other Financing Document, any Equipment Note or any other related document, if an Event of Default hereunder shall have occurred and be continuing, or if such amendment, modification, waiver or supplement will not materially adversely affect the interests of the Certificateholders.

 

ARTICLE XI

TERMINATION OF TRUST

 

Section 11.01.      Termination of the Trust.  The respective obligations and responsibilities of the Company and the Trustee with respect to the Trust shall terminate upon the earlier of (A) the completion of the assignment, transfer and discharge described in the first sentence of the immediately following paragraph and (B) distribution to all Holders of Certificates and the Trustee of all amounts required to be distributed to them pursuant to this Agreement and the disposition of all property held as part of the Trust Property; provided, however, that in no event shall the Trust continue beyond one hundred ten (110) years following the date of the earliest execution of this Trust Agreement.

 

Upon the earlier of (i) the first Business Day after February 28, 2006, or, if later, the fifth Business Day following the Delivery Period Termination Date and (ii) the fifth Business Day following the date on which a Triggering Event occurs (such date, the “Transfer Date”), or, if later the date on which all of the conditions set forth in the immediately following sentence have been satisfied, the Trustee is hereby directed (subject only to the immediately following sentence) to, and the Company shall direct the institution that will serve as the Related Trustee under the Related Pass Through Trust Agreement to, execute and deliver the Assignment and Assumption Agreement, pursuant to which the Trustee shall assign, transfer and deliver all of the Trustee’s right, title and interest to the Trust Property to the Related Trustee under the Related Pass Through Trust Agreement.  The Trustee and the Related Trustee shall execute and deliver the Assignment and Assumption Agreement upon the satisfaction of the following conditions:

 

(i)            The Trustee, the Related Trustee and each of the Rating Agencies then rating the Certificates shall have received an Officer’s Certificate and an Opinion of Counsel dated the date of the Assignment and Assumption Agreement and each

 

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satisfying the requirements of Section 1.02, which Opinion of Counsel shall be substantially to the effect set forth below and may be relied upon by the Beneficiaries (as defined in the Assignment and Assumption Agreement):

 

(a)           upon the execution and delivery thereof by the parties thereto in accordance with the terms of this Agreement and the Related Pass Through Trust Agreement, the Assignment and Assumption Agreement will constitute the valid and binding obligation of each of the parties thereto enforceable against each such party in accordance with its terms;

 

(b)           upon the execution and delivery of the Assignment and Assumption Agreement in accordance with the terms of this Agreement and the Related Pass Through Trust Agreement, each of the Certificates then Outstanding will be entitled to the benefits of the Related Pass Through Trust Agreement;

 

(c)           the Related Trust is not required to be registered as an investment company under the Investment Company Act of 1940, as amended;

 

(d)           the Related Pass Through Trust Agreement constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms; and

 

(e)           neither the execution and delivery of the Assignment and Assumption Agreement in accordance with the terms of this Agreement and the Related Pass Through Trust Agreement, nor the consummation by the parties thereto of the transactions contemplated to be consummated thereunder on the date thereof, will violate any law or governmental rule or regulation of the State of New York or the United States of America known to such counsel to be applicable to the transactions contemplated by the Assignment and Assumption Agreement.

 

(ii)           The Trustee and the Company shall have received (x) a copy of the articles of incorporation and bylaws of the Related Trustee certified as of the Transfer Date by the Secretary or Assistant Secretary of such institution and (y) a copy of the filing (including all attachments thereto) made by the institution serving as the Related Trustee with the Office of the Superintendent, State of New York Banking Department for the qualification of the Related Trustee under Section 131(3) of the New York Banking Law.

 

Upon the execution of the Assignment and Assumption Agreement by the parties thereto, the Trust shall be terminated, the Certificateholders shall receive beneficial interests in the Related Trust in exchange for their interests in the Trust equal to their respective beneficial interests in the Trust, and the Outstanding Certificates representing Fractional Undivided Interests in the Trust shall be deemed for all purposes of this Agreement and the Related Pass Through Trust Agreement, without further signature or action of any party or Certificateholder, to be certificates representing the same fractional undivided interests in the Related Trust and its trust property.  By acceptance of its Certificate, each Certificateholder consents to such

 

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assignment, transfer and delivery of the Trust Property to the trustee of the Related Trust upon the execution and delivery of the Assignment and Assumption Agreement.

 

In connection with the occurrence of the event set forth in clause (B) above, notice of such termination, specifying the Distribution Date upon which the Certificateholders may surrender their Certificates to the Trustee for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to Certificateholders not earlier than the 60th day and not later than the 20th day next preceding such final Distribution Date specifying (A) the Distribution Date upon which the proposed final payment of the Certificates will be made upon presentation and surrender of Certificates at the office or agency of the Trustee therein specified, (B) the amount of any such proposed final payment, and (C) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Certificates at the office or agency of the Trustee therein specified.  The Trustee shall give such notice to the Registrar at the time such notice is given to Certificateholders.  Upon presentation and surrender of the Certificates in accordance with such notice, the Trustee shall cause to be distributed to Certificateholders such final payments.

 

In the event that all of the Certificateholders shall not surrender their Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect thereto.  No additional interest shall accrue on the Certificates after the Distribution Date specified in the first written notice.  In the event that any money held by the Trustee for the payment of distributions on the Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be satisfied, after sixty days’ notice from the Company, is one month prior to the escheat period provided under applicable law) after the final distribution date with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and shall give written notice thereof to the Company.

 

ARTICLE XII

MISCELLANEOUS PROVISIONS

 

Section 12.01.      Limitation on Rights of Certificateholders.  The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or commence any proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations, and liabilities of the parties hereto or any of them.

 

Section 12.02.      Certificates Nonassessable and Fully Paid.  Except as set forth in the last sentence of this Section 12.02, Certificateholders shall not be personally liable for obligations of the Trust, the Fractional Undivided Interests represented by the Certificates shall be nonassessable for any losses or expenses of the Trust or for any reason whatsoever, and Certificates, upon authentication thereof by the Trustee pursuant to Section 3.03, are and shall be deemed fully paid.  No Certificateholder shall have any right (except as expressly provided herein) to vote or in any manner otherwise control the operation and management of the Trust Property, the Trust, or the obligations of the parties hereto, nor shall anything set forth herein, or

 

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contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association.  Neither the existence of the Trust nor any provision herein is intended to or shall limit the liability the Certificateholders would otherwise incur if the Certificateholders owned Trust Property as co-owners, or incurred any obligations of the Trust, directly rather than through the Trust.

 

Section 12.03.      Notices.  (a)  Unless otherwise specifically provided herein, all notices required under the terms and provisions of this Agreement shall be in English and in writing, and any such notice may be given by United States mail, courier service or telecopy, and any such notice shall be effective when received or, if made, given, furnished or filed by facsimile or telecommunication transmission, when received unless received outside of business hours, in which case on the next opening of business on a Business Day,

 

if to the Company, to:

 

JetBlue Airways Corporation

118-29 Queens Blvd.
Forest Hills, NY  11375

 

Attention:  Vice President—Corporate Finance

Facsimile:  718-709-3639

 

with a copy to:

 

JetBlue Airways Corporation

118-29 Queens Blvd.

Forest Hills, NY 11375

 

Attention:  General Counsel

Facsimile:  718-709-3631

 

if to the Trustee, to:

 

Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

 

Attention:  Corporate Trust Administration

Facsimile:  (302) 636-4140

Telephone: (302) 636-6000

 

(b)           The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.

 

(c)           Any notice or communication to Certificateholders shall be mailed by first-class mail to the addresses for Certificateholders shown on the Register kept by the

 

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Registrar.  Failure so to mail a notice or communication or any defect in such notice or communication shall not affect its sufficiency with respect to other Certificateholders.

 

(d)           If a notice or communication is mailed in the manner provided above within the time prescribed, it is conclusively presumed to have been duly given, whether or not the addressee receives it.

 

(e)           If the Company mails a notice or communication to the Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent at the same time.

 

(f)            Notwithstanding the foregoing, all communications or notices to the Trustee shall be deemed to be given only when received by a Responsible Officer of the Trustee.

 

(g)           The Trustee shall promptly furnish the Company with a copy of any demand, notice or written communication received by the Trustee hereunder from any Certificateholder or Loan Trustee.

 

Section 12.04.      Governing Law.  THIS AGREEMENT HAS BEEN DELIVERED IN THE STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Section 12.05.      Severability of Provisions.  If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or the Trust, or of the Certificates or the rights of the Certificateholders thereof.

 

Section 12.06.      Trust Indenture Act Controls.  This Agreement is subject to the provisions of the Trust Indenture Act and shall, to the extent applicable, be governed by such provisions.

 

Section 12.07.      Effect of Headings and Table of Contents.  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 12.08.      Successors and Assigns.  All covenants, agreements, representations and warranties in this Agreement by the Trustee and the Company shall bind and, to the extent permitted hereby, shall inure to the benefit of and be enforceable by their respective successors and assigns, whether so expressed or not.

 

Section 12.09.      Benefits of Agreement.  Except as otherwise provided in this Agreement, nothing in this Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Certificateholders, any benefit or any legal or equitable right, remedy or claim under this Agreement.

 

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Section 12.10.      Legal Holidays.  In any case where any Regular Distribution Date or Special Distribution Date relating to any Certificate shall not be a Business Day, then (notwithstanding any other provision of this Agreement) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date, and no interest shall accrue during the intervening period.

 

Section 12.11.      Counterparts.  For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.

 

Section 12.12.      Intention of Parties.  The parties hereto intend that the Trust be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association taxable as a corporation or as a partnership.  Each Certificateholder and Investor, by its acceptance of its Certificate or a beneficial interest therein, agrees to treat the Trust as a grantor trust for all U.S. federal, state and local income tax purposes.  The powers granted and obligations undertaken pursuant to this Agreement shall be so construed so as to further such intent.

 

*     *     *

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first written above.

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

 /s/ John Harvey

 

Name: John Harvey

 

Title: VP Corporate Finance and Treasurer

 

 

 

 

 

WILMINGTON TRUST COMPANY, as Trustee

 

 

 

 

 

By:

 /s/ W. Chris Sponenberg

 

Name: W. Chris Sponenberg

 

Title: Vice President

 

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EXHIBIT A

 

FORM OF CERTIFICATE

 

REGISTERED

No.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.

 

BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS.  THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

 

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GLOBAL CERTIFICATE

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2G-1-O

 

JetBlue Airways

Pass Through Certificate,

Series 2004-2G-1-O

 

Final Legal Distribution Date:  February 15, 2018

 

evidencing a fractional undivided interest in a trust, the property of which includes certain equipment notes each secured by an Aircraft owned by JetBlue Airways Corporation.

 

having a face amount of $[                ] representing [         ]% of the Trust per $1,000 face amount

 

THIS CERTIFIES THAT                                 , for value received, is the registered owner of a Fractional Undivided Interest having a face amount of $                             (                                dollars) in the JetBlue Airways Pass Through Trust, Series 2004-2G-1-O (the “Trust”) created pursuant to a Pass Through Trust Agreement, dated as of November 15, 2004 (the “Agreement”), between Wilmington Trust Company (the “Trustee”) and JetBlue Airways Corporation, a corporation incorporated under Delaware law (the “Company”), a summary of certain of the pertinent provisions of which is set forth below.  To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement.  This Certificate is one of the duly authorized Certificates designated as JetBlue Airways Pass Through Certificates, Series 2004-2G-1-O” (herein called the “Certificates”).  This Certificate is issued under and is subject to the terms, provisions, and conditions of the Agreement.  By virtue of its acceptance hereof the Certificateholder of this Certificate assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement.  The property of the Trust includes an interest in certain Equipment Notes and all rights of the Trust to receive payments under the Intercreditor Agreement, the Policy and any Liquidity Facility (the “Trust Property”).  Each issue of the Equipment Notes is secured by, among other things, a security interest in the Aircraft owned by the Company.

 

The Certificates represent fractional undivided interests in the Trust and the Trust Property, and have no rights, benefits or interest in respect of any assets or property other than the Trust Property.

 

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from and to the extent of funds then available to the Trustee, there will be distributed on each (i) February 15, May 15, August 15 and November 15 and (ii) in the case of any payment of principal or interest on, or with respect to, any Equipment Note received by the Subordination Agent after the date on which such payment is scheduled to be made, but within ten Business Days of such scheduled payment date, the date of receipt of such payment by the Trustee if received by noon and if later, the next Business Day (each a “Regular Distribution Date”), commencing on February 15, 2005, to the Person in whose name this Certificate is registered at the close of business on the Record Date immediately preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments due on such Regular

 

2



 

Distribution Date on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments.  Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received.  If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date.  The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

 

The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any of their affiliates.  The Certificates are limited in right or payment, all as more specifically set forth on the face hereof and in the Agreement.  All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement.  Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement.  This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.  A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

 

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust.  Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate.  The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

 

As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, in the Borough of Manhattan, the City of New York, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the

 

3



 

Trustee and the Registrar duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

 

Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

Under certain circumstances set forth in Section 11.01 of the Agreement, all of the Trustee’s right, title and interest to the Trust Property may be assigned, transferred and delivered to the Related Trustee of the Related Trust pursuant to the Assignment and Assumption Agreement.  Upon the effectiveness of such Assignment and Assumption Agreement (the “Transfer”), the Trust shall be terminated, the Certificateholders shall receive beneficial interests in the Related Trust in exchange for their interests in the Trust equal to their respective beneficial interests in the Trust, the Certificates representing Fractional Undivided Interests in the Trust shall be deemed for all purposes of the Agreement and the Related Pass Through Trust Agreement to be certificates representing the same fractional undivided interests in the Related Trust and its trust property.  Each Certificateholder, by its acceptance of this Certificate or a beneficial interest herein, agrees to be bound by the Assignment and Assumption Agreement and subject to the terms of the Related Pass Through Trust Agreement as a certificateholder thereunder.  From and after the Transfer, unless and to the extent the context otherwise requires, references herein to the Trust, the Agreement and the Trustee shall constitute references to the Related Trust, the Related Pass Through Trust Agreement and trustee of the Related Trust, respectively.

 

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $1,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof except that one Certificate may be in a different denomination.  As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment by the Holder of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

 

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

 

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

 

4



 

UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, FROM AND AFTER THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

 

5



 

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

 

Dated:                         , 20    

 

 

JETBLUE AIRWAYS PASS THROUGH TRUST, SERIES 2004-2G-1-O

 

 

 

 

 

By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

6



 

[FORM OF THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION]

 

This is one of the Certificates referred
to in the within-mentioned Agreement.

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Trustee

 

 

 

 

 

By:

 

 

Authorized Officer

 

7



 

FORM OF TRANSFER NOTICE

 

FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto

 

Insert Taxpayer Identification No.

 

 

 

please print or typewrite name and address including zip code of assignee

 

 

 

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

 

 

 

attorney to transfer said Certificate on the books of the Trustee with full power of substitution in the premises.

 

Date:

[Name of Transferor]

 

 

 

NOTE: The signature must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.

 

 

 

 

Signature Guarantee:

 

 

 

 

8



 

EXHIBIT B

 

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

JetBlue Airways Pass Through Trust, Series 2004-2G-1-O

 

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated                     , (the “Agreement”), between Wilmington Trust Company, a Delaware banking corporation (“WTC”), not in its individual capacity except as expressly provided herein, but solely as trustee under the Pass Through Trust Agreement dated as of November 15, 2004 (as amended, modified or otherwise supplemented from time to time, the “Pass Through Trust Agreement”) in respect of the JetBlue Airways Pass Through Trust, Series 2004-2G-1-O (the “Assignor”), and Wilmington Trust Company, a Delaware banking corporation, not in its individual capacity except as expressly provided herein, but solely as trustee under the Pass Through Trust Agreement dated as of                          , 200    (the “New Pass Through Trust Agreement”) in respect of the JetBlue Airways Pass Through Trust, Series 2004-2G-1-S (the “Assignee”).

 

W I T N E S S E T H:

 

WHEREAS, the parties hereto desire to effect on the date hereof (the “Transfer Date”) (a) the transfer by the Assignor to the Assignee of all of the right, title and interest of the Assignor in, under and with respect to, among other things, the Trust Property and each of the documents listed in Schedule I hereto (the “Scheduled Documents”) and (b) the assumption by the Assignee of the obligations of the Assignor (i) under the Scheduled Documents and (ii) in respect of the Certificates issued under the Pass Through Trust Agreement; and

 

WHEREAS, the Scheduled Documents permit such transfer upon satisfaction of certain conditions heretofore or concurrently herewith being complied with;

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, the parties hereto do hereby agree as follows (capitalized terms used herein without definition having the meaning ascribed thereto in the Pass Through Trust Agreement):

 

1.             Assignment.  The Assignor does hereby sell, assign, convey, transfer and set over unto the Assignee as of the Transfer Date all of its present and future right, title and interest in, under and with respect to the Trust Property and the Scheduled Documents and each other contract, agreement, document or instrument relating to the Trust Property or the Scheduled Documents (such other contracts, agreements, documents or instruments, together with the Scheduled Documents, to be referred to as the “Assigned Documents”), and any proceeds therefrom, together with all documents and instruments evidencing any of such right, title and interest.

 

2.             Assumption.  The Assignee hereby assumes for the benefit of the Assignor and each Certificateholder (collectively, the “Beneficiaries”) all of the duties and obligations of the Assignor, whenever accrued, pursuant to the Assigned Documents and hereby confirms that it shall be deemed a party to each of the Assigned Documents to which the Assignor is a party and shall be bound by all the terms thereof (including the agreements and obligations of the Assignor set forth therein) as if therein named as the Assignor.  Further, the Assignee hereby assumes for

 

1



 

the benefit of the Assignor and the Beneficiaries all of the duties and obligations of the Assignor under the Outstanding Certificates and hereby confirms that the Certificates representing Fractional Undivided Interests under the Pass Through Trust Agreement shall be deemed for all purposes of the Pass Through Trust Agreement and the New Pass Through Trust Agreement to be certificates representing the same fractional undivided interests under the New Pass Through Trust Agreement equal to their respective beneficial interests in the trust created under the Pass Through Trust Agreement.

 

3.             Effectiveness.  This Agreement shall be effective upon the execution and delivery hereof by the parties hereto, and each Certificateholder, by its acceptance of its Certificate or a beneficial interest therein, agrees to be bound by the terms of this Agreement.

 

4.             Payments.  The Assignor hereby covenants and agrees to pay over to the Assignee, if and when received following the Transfer Date, any amounts (including any sums payable as interest in respect thereof) paid to or for the benefit of the Assignor that, under Section 1 hereof, belong to the Assignee.

 

5.             Further Assurances.  The Assignor shall, at any time and from time to time, upon the request of the Assignee, promptly and duly execute and deliver any and all such further instruments and documents and take such further action as the Assignee may reasonably request to obtain the full benefits of this Agreement and of the right and powers herein granted.  The Assignor agrees to deliver the Global Certificates, and all Trust Property, if any, then in the physical possession of the Assignor, to the Assignee.

 

6.             Representations and Warranties.  (a)  The Assignee represents and warrants to the Assignor and each of the Beneficiaries that:

 

(i)            it has all requisite power and authority and legal right to enter into and carry out the transactions contemplated hereby and to carry out and perform the obligations of the “Pass Through Trustee” under the Assigned Documents;

 

(ii)           on and as of the date hereof, the representations and warranties of the Assignee set forth in Section 7.15 of the New Pass Through Trust Agreement are true and correct.

 

(b)           The Assignor represents and warrants to the Assignee that:

 

(i)            it is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the full trust power, authority and legal right under the laws of the State of Delaware and the United States pertaining to its trust and fiduciary powers to execute and deliver this Agreement;

 

(ii)           the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by it and will not violate its articles of association or by-laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

 

2



 

(iii)          this Agreement constitutes the legal, valid and binding obligations of it enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

7.             GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.

 

8.             Counterparts.  This Agreement may be executed in any number of counterparts, all of which together shall constitute a single instrument.  It shall not be necessary that any counterpart be signed by both parties so long as each party shall sign at least one counterpart.

 

9.             Third Party Beneficiaries.  The Assignee hereby agrees, for the benefit of the Beneficiaries, that its representations, warranties and covenants contained herein are also intended to be for the benefit of each Beneficiary, and each Beneficiary shall be deemed to be an express third party beneficiary with respect thereto, entitled to enforce directly and in its own name any rights or claims it may have against such party as such beneficiary.

 

*     *     *

 

3



 

IN WITNESS WHEREOF, the parties hereto, through their respective officers thereunto duly authorized, have duly executed this Assignment as of the day and year first above written.

 

 

 

ASSIGNOR:

 

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly provided herein, but solely as trustee under the Pass Through Trust Agreement in respect of the JetBlue Airways Pass Through Trust 2004-2G-1-O

 

 

 

By:

 

 

Title:

 

 

 

 

 

ASSIGNEE:

 

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly provided herein, but solely as trustee under the Pass Through Trust Agreement in respect of the JetBlue Airways Pass Through Trust 2004-2G-1-S

 

 

 

By:

 

 

Title:

 

4



 

SCHEDULE I

 

SCHEDULE OF ASSIGNED DOCUMENTS

 

(1)           Intercreditor Agreement dated as of November 15, 2004 among the Trustee, the Other Trustee, the Policy Provider, the Liquidity Providers, the liquidity provider, if any, relating to the Certificates issued under (and as defined in) the Other Pass Through Trust Agreements and the Subordination Agent.

 

(2)           Escrow and Paying Agent Agreement (Class G-1) dated as of November 15, 2004 among the Escrow Agent, the Underwriters, the Trustee and the Paying Agent.

 

(3)           Note Purchase Agreement dated as of November 15, 2004 among the Company, the Trustee, the Other Trustee, the Depositary, the Escrow Agent, the Paying Agent and the Subordination Agent.

 

(4)           Deposit Agreement (Class G-1) dated as of November 15, 2004 between the Escrow Agent and the Depositary.

 

(5)           The Policy (Class G-1) dated November 15, 2004, as defined in the Intercreditor Agreement.

 

(6)           The Policy Provider Agreement dated November 15, 2004, as defined in the Intercreditor Agreement.

 

(7)           The Revolving Credit Agreement (2004-2G-1) dated as of November 15, 2004 between the Subordination Agent and the Primary Liquidity Provider.

 

(8)           The Class G-1 Above-Cap Liquidity Facility dated November 15, 2004, as defined in the Intercreditor Agreement.

 

(9)           Each of the Operative Agreements (as defined in the Participation Agreement for each Aircraft) in effect as of the Transfer Date.

 

5



 

EXHIBIT C

 

FORM OF NOTICE TO DESIGNATE NOMINEE AS WITHHOLDING AGENT

(Treas. Reg. § 1.1445-8(f); 17 C.F.R. 240.10b-17(b)(1))

 

[DATE]

 

National Association of Securities Dealers, Inc.

Market Operations

80 Merritt Blvd.

Trumbull, CT 06611

 

Re:          JetBlue Airways Pass Through Trust, Series 2004-2G-1-O
Pass Through Certificates, Series 2004-2G-1-O

 

With respect to distributions to be made on [INSERT DISTRIBUTION DATE] to holders of the above-referenced Pass Through Certificates in the amount of $                         per $1,000 principal amount of Certificate, we hereby designate the appropriate nominees to withhold from amounts distributable to any non-U.S. Person such amounts as required by Section 1446 of the Internal Revenue Code of 1986, as amended.  The term “non-U.S. Person” means any person or entity that, for U.S. federal income tax purposes, is not a “U.S. Person.” “U.S. Person” for this purpose means a citizen or resident of the United States, a corporation, partnership or other entity created or organized under the laws of the United States or any political subdivision thereof, or an estate or trust, the income of which is subject to U.S. federal income taxation regardless of its source.  The date of record for determining holders of Certificates entitled to receive the distribution on [INSERT DISTRIBUTION DATE] is [INSERT RELATED RECORD DATE].

 

Very truly yours,

 

1


EX-4.5 7 a04-11378_4ex4d5.htm EX-4.5

Exhibit 4.5

 

EXECUTION COPY

 

 

REVOLVING CREDIT AGREEMENT
(2004-2G-1)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY,
as Subordination Agent,
as agent and trustee for the
JetBlue Airways Pass Through Trust 2004-2G-1,
as Borrower

 

and

 

LANDESBANK BADEN-WÜRTTEMBERG,
as Primary Liquidity Provider

Relating to

 

JetBlue Airways Pass Through Trust 2004-2G-1
JetBlue Airways Enhanced Pass Through Certificates, Series 2004-2G-1

 



 

Table of Contents

 

ARTICLE I

DEFINITIONS

 

 

Section 1.01

Certain Defined Terms

 

 

 

 

 

ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENT

 

 

Section 2.01

Advances

 

 

Section 2.02

Making the Advances

 

 

Section 2.03

Fees

 

 

Section 2.04

Automatic Reductions and Termination of the Maximum Commitment

 

 

Section 2.05

Repayments of Interest Advances, the Special Termination Advance or the Final Advance

 

 

Section 2.06

Repayments of Provider Advances

 

 

Section 2.07

Payments to the Primary Liquidity Provider Under the Intercreditor Agreement

 

 

Section 2.08

Book Entries

 

 

Section 2.09

Payments from Available Funds Only

 

 

Section 2.10

Extension of Expiry Date; Non-Extension Advance

 

 

Section 2.11

Right to Further Extend Expiry Date

 

 

 

 

 

ARTICLE III

OBLIGATIONS OF THE BORROWER

 

 

Section 3.01

Increased Costs

 

 

Section 3.02

Capital Adequacy

 

 

Section 3.03

Payments Free of Deductions

 

 

Section 3.04

Payments

 

 

Section 3.05

Computations

 

 

Section 3.06

Payment on Non-Business Days

 

 

Section 3.07

Interest

 

 

Section 3.08

Replacement of Borrower

 

 

Section 3.09

Funding Loss Indemnification

 

 

Section 3.10

Illegality

 

 

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT

 

 

Section 4.01

Conditions Precedent to Effectiveness of Section 2.01

 

 

Section 4.02

Conditions Precedent to Borrowing

 

 

 

 

 

ARTICLE V

COVENANTS

 

 

Section 5.01

Affirmative Covenants of the Borrower

 

 

Section 5.02

Negative Covenants of the Borrower

 

 

 

 

 

ARTICLE VI

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

 

Section 6.01

Liquidity Events of Default and Special Termination

 

 

 

 

 

ARTICLE VII

MISCELLANEOUS

 

 

Section 7.01

Amendments, Etc

 

 

Section 7.02

Notices, Etc

 

 

Section 7.03

No Waiver; Remedies

 

 

i



 

 

Section 7.04

Further Assurances

 

 

Section 7.05

Indemnification; Survival of Certain Provisions

 

 

Section 7.06

Liability of the Primary Liquidity Provider

 

 

Section 7.07

Costs, Expenses and Taxes

 

 

Section 7.08

Binding Effect; Participations

 

 

Section 7.09

Severability

 

 

Section 7.10

GOVERNING LAW

 

 

Section 7.11

Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity

 

 

Section 7.12

Execution in Counterparts

 

 

Section 7.13

Entirety

 

 

Section 7.14

Headings

 

 

Section 7.15

PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES

 

 

Section 7.16

Transfer

 

 

Annex I

-

Interest Advance Notice of Borrowing

Annex II

-

Non-Extension Advance Notice of Borrowing

Annex III

-

Downgrade Advance Notice of Borrowing

Annex IV

-

Final Advance Notice of Borrowing

Annex V

-

Notice of Termination

Annex VI

-

Notice of Replacement Subordination Agent

Annex VII

-

Special Termination Advance Notice of Borrowing

Annex VIII

-

Notice of Special Termination

 

ii



 

REVOLVING CREDIT AGREEMENT

 

This REVOLVING CREDIT AGREEMENT (2004-2G-1), dated as of November 15, 2004 (as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), between WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity but solely as Subordination Agent under the Intercreditor Agreement (each as defined below), as agent and trustee for the Class G-1 Trust (as defined below) (the “Borrower”), and LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public law institution with legal capacity (Rechtsfähige Anstalt des Öffentlichen Rechts) (“Primary Liquidity Provider”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Class G-1 Trust Agreement (as defined below), the Class G-1 Trust is issuing the Class G-1 Certificates; and

 

WHEREAS, the Borrower, in order to support the timely payment of a portion of the interest on the Class G-1 Certificates in accordance with their terms, has requested the Primary Liquidity Provider to enter into this Agreement, providing in part for the Borrower to request in specified circumstances that Advances be made hereunder.

 

NOW, THEREFORE, in consideration of the mutual promises contained herein, and of other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01                            Certain Defined Terms.  (a)  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(i)                                     the terms used herein that are defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular;

 

(ii)                                  all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Agreement;

 

(iii)                               the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and

 

(iv)                              the term “including” means “including without limitation”.

 

Additional Costs” has the meaning specified in Section 3.01.

 



 

Advance” means an Interest Advance, a Final Advance, a Provider Advance, a Special Termination Advance or an Applied Provider Advance, as the case may be.

 

Applicable Liquidity Rate” has the meaning specified in Section 3.07(g).

 

Applicable Margin” means (x) with respect to any Unpaid Advance (other than a Special Termination Advance) or Applied Provider Advance, 1.75% per annum, (y) with respect to any Unapplied Provider Advance, the margin per annum specified in the Fee Letter or (z) with respect to any Special Termination Advance, the margin per annum specified in the Fee Letter.

 

Applied Downgrade Advance” has the meaning specified in Section 2.06(a).

 

Applied Non-Extension Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Provider Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Special Termination Advance” has the meaning assigned to such term in Section 2.05.

 

Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Borrower and the trustee of the Successor Trust.

 

Base Rate” means, for a day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to (a) the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Primary Liquidity Provider from three Federal funds brokers of recognized standing selected by it, plus (b) one-quarter of one percent (0.25%).

 

Base Rate Advance” means an Advance that bears interest at a rate based upon the Base Rate.

 

Borrower” has the meaning specified in the recital of parties to this Agreement.

 

Borrowing” means the making of Advances requested by delivery of a Notice of Borrowing.

 

Business Day” means any day (x) other than a Saturday or Sunday or a day on which commercial banks are authorized or required by law to close in New York, New York or, so long as any Class G-1 Certificate is outstanding, the city and state in which the Class G-1 Trustee, the Borrower or any Indenture Trustee maintains its corporate trust office or receives and disburses funds, and (y) if the applicable Business Day relates to any Advance or amount bearing interest based on LIBOR, on which dealings are carried on in the London interbank market.

 

Consent Period” has the meaning specified in Section 2.10.

 

2



 

 

Deposit Agreement” means the Deposit Agreement (2004-2G-1) dated as of the date hereof between Wilmington Trust Company, as Escrow Agent and HSH Nordbank AG, New York Branch, as Depositary, pertaining to the Class G-1 Certificates, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch.

 

Deposits” has the meaning assigned to such term in the Deposit Agreement.

 

Downgrade Advance” means an Advance made pursuant to Section 2.02(c).

 

Downgrade Event” means a downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) issued by either Rating Agency below the applicable Threshold Rating unless each Rating Agency shall have confirmed in writing on or prior to the date of such downgrading that such downgrading will not result in the downgrading, withdrawal or suspension of the ratings of the Class G-1 Certificates (without regard to the Policies), in which case such downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) shall not constitute a Downgrade Event (provided, that for Standard & Poor’s the “short-term issuer credit rating” shall refer to (x) on or prior to July 18, 2005, the Primary Liquidity Provider’s short-term issuer credit rating with the benefit of state guarantees and (y) after July 18, 2005 the Primary Liquidity Provider’s short-term issuer credit rating without the benefit of state guarantees unless Standard & Poor’s has notified the Subordination Agent that another rating would be applicable to the Primary Liquidity Provider’s obligations hereunder, in which case, such other applicable rating).

 

Effective Date” has the meaning specified in Section 4.01.  The delivery of the certificate of the Primary Liquidity Provider contemplated by Section 4.01(e) shall be conclusive evidence that the Effective Date has occurred.

 

Excluded Taxes” means (i) any Taxes imposed on, based on, or measured by the overall net income, capital, franchises, or receipts (other than Taxes which are or are in the nature of sales or use Taxes or value added Taxes) of the Primary Liquidity Provider or any of its Lending Offices, (ii) withholding Taxes imposed by the United States except to the extent that such United States withholding Taxes are imposed or increased as a result of any change in applicable law (excluding from change in applicable law for this purpose a change in an applicable treaty or other change in law affecting the applicability of a treaty) after the date hereof, or in the case of a successor Primary Liquidity Provider (including a transferee of an Advance), after the date on which such successor Primary Liquidity Provider obtains its interest, (iii) any withholding Taxes imposed by the United States which are imposed or increased as a result of the Primary Liquidity Provider failing to deliver to the Borrower any certificate or document (which certificate or document in the good faith judgment of the Primary Liquidity Provider it is legally entitled to provide) which is reasonably requested by the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) withholding tax, and (iv) withholding Taxes imposed by the United States on payments to a recipient in any other jurisdiction to which such Lending Office is moved if, under the laws in effect at the time of such move, such laws would require greater withholding of Taxes on

 

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payments to such Primary Liquidity Provider acting from an office in such jurisdiction than would be required on payments to such Primary Liquidity Provider acting from an office in the jurisdiction from which such Lending Office was moved.

 

Expenses” means liabilities, obligations, damages, settlements, penalties, claims, actions, suits, costs, expenses, and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel and costs of investigation), provided that Expenses shall not include Taxes.

 

Expiry Date” means November 14, 2005 initially, or any date to which the Expiry Date is extended pursuant to Section 2.10 or 2.11.

 

Extension Effective Date” has the meaning assigned to such term in Section 2.11.

 

Final Advance” means an Advance made pursuant to Section 2.02(d).

 

Intercreditor Agreement” means the Intercreditor Agreement dated as of the date hereof among the Trustees, the Primary Liquidity Provider, the Primary Liquidity Provider under each Primary Liquidity Facility (other than this Agreement), the Above-Cap Liquidity Provider, the Policy Provider and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Interest Advance” means an Advance made pursuant to Section 2.02(a).

 

Interest Period” means, with respect to any LIBOR Advance, each of the following periods:

 

(1)                                  the period beginning on either (x) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such LIBOR Advance or (y) the date of the withdrawal of funds from the Class G-1 Primary Cash Collateral Account for the purpose of paying interest on the Class G-1 Certificates as contemplated by Section 2.06(a) hereof and, in either case, ending on the next Regular Distribution Date; and

 

(2)                                  each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the next Regular Distribution Date;

 

provided, however, that if (x) the Final Advance shall have been made, or (y) other outstanding Advances shall have been converted into the Final Advance, then the Interest Periods shall be successive periods of one month beginning on the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Final Advance (in the case of clause (x) above) or the Regular Distribution Date following such conversion (in the case of clause (y) above); provided, further that if the last day of any Interest Period shall not be a Business Day, such Interest Period will end on the next succeeding Business Day.

 

Lending Office” means the lending office of the Primary Liquidity Provider, presently located at Stuttgart, Germany, or such other lending office as the Primary Liquidity Provider

 

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from time to time shall notify the Borrower as its lending office hereunder; provided that the Primary Liquidity Provider shall not change its Lending Office to another Lending Office outside of Germany or the United States of America except in accordance with Section 3.01, 3.02 or 3.03 hereof.

 

LIBOR” means, with respect to any Interest Period, the interest rate per annum at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates as indicated on the Reuters Screen LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates offered by the London Reference Banks to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the second LIBOR Business Day prior to the first day of such Interest Period for deposits of a duration equal to such Interest Period (or such other period most nearly corresponding to such period) in an amount substantially equal to the principal amount of the applicable LIBOR Advance as of the first day of such Interest Period.  The Primary Liquidity Provider will, if necessary, request that each of the London Reference Banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded upwards to the nearest 1/100%).  If no such quotation can be obtained, the rate will be Base Rate.

 

LIBOR Advance” means an Advance bearing interest at a rate based upon LIBOR.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Liquidity Event of Default” means the occurrence of either (a) the Acceleration of all of the Equipment Notes (provided that, with respect to any period prior to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal balance in excess of $300,000,000) or (b) a JetBlue Bankruptcy Event.

 

Liquidity Indemnitee” means (i) the Primary Liquidity Provider, (ii) the directors, officers, employees, servants and agents of the Primary Liquidity Provider and its Affiliates, and (iii) the successors and permitted assigns of the persons described in clauses (i) and (ii), inclusive.

 

London Reference Banks” means the principal London offices of Citibank, N.A., Barclays Bank PLC and Standard Chartered Bank or such other bank or banks as may from time to time be agreed to by JetBlue and the Primary Liquidity Provider.

 

London/Stuttgart Business Day” means any day on which commercial banks are open for general business in London, England and Stuttgart, Germany.

 

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Maximum Available Commitment” shall mean, subject to the proviso contained in the third sentence of Section 2.02(a), at any time of determination, (a) the Required Amount at such time less (b) the aggregate amount of each Interest Advance outstanding at such time; provided, however, that following a Provider Advance, a Special Termination Advance or a Final Advance, the Maximum Available Commitment shall be zero.

 

Maximum Commitment” means initially $19,879,188.97, as the same may be reduced from time to time in accordance with Section 2.04(a).

 

Non-Excluded Tax” has the meaning specified in Section 3.03.

 

Non-Extension Advance” means an Advance made pursuant to Section 2.02(b).

 

Notice of Borrowing” has the meaning specified in Section 2.02(f).

 

Notice of Replacement Subordination Agent” has the meaning specified in Section 3.08.

 

Participating Institution” has the meaning specified in Section 7.08(b).

 

Performing Note Deficiency” means any time that less than 65% of the then aggregate outstanding principal amount of all Equipment Notes are Performing Equipment Notes.

 

Primary Liquidity Provider” has the meaning specified in the recital of parties to this Agreement.

 

Prospectus Supplement” means the Prospectus Supplement dated November 9, 2004 relating to the Certificates, as such Prospectus Supplement may be amended or supplemented.

 

Provider Advance” means a Downgrade Advance or a Non-Extension Advance.

 

Regulatory Change” has the meaning specified in Section 3.01.

 

Replenishment Amount” has the meaning assigned to such term in Section 2.06(b).

 

Required Amount” means, for any day, (i) so long as there is no Interest Advance made hereunder remaining unreimbursed on such day, the aggregate amount of interest, calculated at the rate per annum equal to the applicable Capped Interest Rate for the Class G-1 Certificates, that would be payable on the Class G-1 Certificates on each of the six successive Regular Distribution Dates immediately following such day, without regard to expected future distributions of principal on such Class of Certificates or (ii) if there is one or more Interest Advances made hereunder and remaining unreimbursed on such day, the sum of (x) the unreimbursed amount of such Interest Advance(s) and (y) the product of (A) the Undrawn Percentage and (B) the amount determined pursuant to clause (i) as if no Interest Advances were outstanding and unreimbursed on such date.  The “Undrawn Percentage” as of any date is equal to one hundred percent minus the sum of the Individual Drawn Percentages for the Interest Advances that are unreimbursed as of such date.  The “Individual Drawn Percentage” for any unreimbursed Interest Advance as of any day is equal to a fraction, expressed as a percentage,

 

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the numerator of which is the unreimbursed amount of such Interest Advance as of such date and the denominator of which is the Required Amount as of the date of each such Interest Advance calculated as if no Interest Advance were outstanding on the date of such Interest Advance and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date.  Repayments of Interest Advances shall be deemed to have been made in the order in which such Interest Advances were made.  Notwithstanding the above, in the event of any Policy Provider Election, for purposes of the definition of Required Amount, the Pool Balance shall be deemed to be reduced by the amount (if positive) by which (a) the then outstanding principal balance of each Series G-1 Equipment Note in respect of which such Policy Provider Election has been made shall exceed (b) the amount of any Policy Drawings previously paid by the Policy Provider in respect of principal on such Series G-1 Equipment Note.

 

Special Termination Advance” means an Advance made pursuant to Section 2.02(e).

 

Special Termination Notice” means the Notice of Special Termination substantially in the form of Annex VIII to this Agreement.

 

Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-1-S.

 

Termination Date” means the earliest to occur of the following:  (i) the Expiry Date; (ii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that all of the Class G-1 Certificates have been paid in full (or provision has been made for such payment in accordance with the Intercreditor Agreement and the Trust Agreement) or are otherwise no longer entitled to the benefits of this Agreement; (iii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that a Replacement Primary Liquidity Facility has been substituted for this Agreement in full pursuant to Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day following the receipt by the Borrower and JetBlue of a Termination Notice or a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01; and (v) the date on which no Advance is or may (including by reason of reinstatement as herein provided) become available for a Borrowing hereunder.

 

Termination Notice” means the Notice of Termination substantially in the form of Annex V to this Agreement.

 

Unapplied Non-Extension Advance” means the portion of any Non-Extension Advance which is not an Applied Non-Extension Advance.

 

Unapplied Provider Advance” means the portion of any Provider Advance which is not an Applied Provider Advance.

 

Unpaid Advance” has the meaning specified in Section 2.05.

 

(b)                                 Terms Defined in the Intercreditor Agreement.  Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

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ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENT

 

Section 2.01                            Advances.  The Primary Liquidity Provider hereby irrevocably agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless the obligations of the Primary Liquidity Provider shall be earlier terminated in accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to exceed the Maximum Commitment.

 

Section 2.02                            Making the Advances.  (a)  Each “Interest Advance” shall be made in a single Borrowing by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex I, signed by a Responsible Officer of the Borrower, such Interest Advance in an amount not exceeding the Maximum Available Commitment at such time and shall be used solely for the payment when due of interest for the applicable Interest Period on the Class G-1 Certificates at the Stated Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor Agreement.  Each Interest Advance made hereunder shall automatically reduce the Maximum Available Commitment (based on the Required Amount as recalculated as a result of making such Interest Advance) and the amount available to be borrowed hereunder by subsequent Advances by the amount of such Interest Advance (subject to reinstatement as provided in the next sentence).  Subject to the provisions of Section 3.6(g) of the Intercreditor Agreement, upon repayment to the Primary Liquidity Provider in full or in part of the amount of any Interest Advance made pursuant to this Section 2.02(a), together with accrued interest thereon (as provided herein), the Maximum Available Commitment shall be reinstated by an amount equal to the product of (A) the then Required Amount (calculated as if no Interest Advances are outstanding) and (B) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Advances are reimbursed in the order in which they were made) in respect of principal of such Interest Advance and the denominator of which is the Required Amount at the date of such Interest Advance (calculated as if no Interest Advances are then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date) but not to exceed the Maximum Commitment; provided, however, that the Maximum Available Commitment shall not be so reinstated at any time if (x) (i) a Liquidity Event of Default shall have occurred and be continuing and (ii) there is a Performing Note Deficiency or (y) at any time after the making of a Provider Advance, a Final Advance or a Special Termination Advance.

 

(b)                                 A “Non-Extension Advance” shall be made in a single Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of the Intercreditor Agreement (unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower as contemplated by said Section 3.6(d) within the time period specified in such Section) by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex II attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-1 Primary Cash Collateral Account in accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.

 

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(c)                                  A “Downgrade Advance” shall be made in a single Borrowing following the occurrence of a Downgrade Event (as provided for in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower in accordance with said Section 3.6(c), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex III, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-1 Primary Cash Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f) of the Intercreditor Agreement.

 

(d)                                 A “Final Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(a), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex IV, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-1 Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(i) of the Intercreditor Agreement).

 

(e)                                  A “Special Termination Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(b), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex VII, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-1 Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(k) of the Intercreditor Agreement).

 

(f)                                    Each Borrowing shall be made on notice in writing (a “Notice of Borrowing”) in substantially the form required by Section 2.02(a), 2.02(b), 2.02(c), 2.02(d) or 2.02(e), as the case may be, given by the Borrower to the Primary Liquidity Provider.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 4:00 p.m. (New York City time) on the date of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available in U.S. dollars and in immediately available funds, the amount of such Borrowing to be paid to the Borrower in accordance with its payment instructions.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing on a day that is not a Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 1:00 p.m. (New York City time) on the first Business Day following the day of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available to the Borrower, in accordance with its payment instructions, in U.S. dollars and in immediately available funds, the amount of such Borrowing.  Payments of proceeds of a Borrowing shall be made by wire transfer of immediately available funds to the Borrower in accordance with such wire transfer instructions as the Borrower shall furnish from time to time to the Primary Liquidity Provider for such purpose.

 

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Each Notice of Borrowing shall be irrevocable and binding on the Borrower.  Each Notice of Borrowing shall be effective upon delivery of a copy thereof to the Primary Liquidity Provider’s New York Branch (with a copy to the Lending Office) at the address specified pursuant to the terms of Section 7.02.

 

(g)                                 Upon the making of any Advance requested pursuant to a Notice of Borrowing in accordance with the Borrower’s payment instructions, the Primary Liquidity Provider shall be fully discharged of its obligation hereunder with respect to such Notice of Borrowing, and the Primary Liquidity Provider shall not thereafter be obligated to make any further Advances hereunder in respect of such Notice of Borrowing to the Borrower or to any other Person.  If the Primary Liquidity Provider makes an Advance requested pursuant to a Notice of Borrowing before 1:00 p.m. (New York City time) on the second Business Day after the date of payment specified in Section 2.02(f), the Primary Liquidity Provider shall have fully discharged its obligations hereunder with respect to such Advance and an event of default shall not have occurred hereunder.  Following the making of any Advance pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e) to fund the Class G-1 Primary Cash Collateral Account, the Primary Liquidity Provider shall have no interest in or rights to the Class G-1 Primary Cash Collateral Account, such Advance or any other amounts from time to time on deposit in the Class G-1 Primary Cash Collateral Account; provided, however, that the foregoing shall not affect or impair the obligations of the Subordination Agent to make the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement and provided further, that the foregoing shall not affect or impair the rights of the Primary Liquidity Provider to provide written instructions with respect to the investment and reinvestment of the amounts in Cash Collateral Accounts to the extent provided in Section 2.2(b) of the Intercreditor Agreement.  By paying to the Borrower proceeds of Advances requested by the Borrower in accordance with the provisions of this Agreement, the Primary Liquidity Provider makes no representation as to, and assumes no responsibility for, the correctness or sufficiency for any purpose of the amount of the Advances so made and requested.

 

Section 2.03                            Fees.  The Borrower agrees to pay to the Primary Liquidity Provider the fees set forth in the Fee Letter applicable to this Agreement.

 

Section 2.04                            Automatic Reductions and Termination of the Maximum Commitment.

 

(a)                                  Automatic Reductions.  Promptly following each date on which the Required Amount is reduced as a result of a reduction in the Pool Balance of the Class G-1 Certificates (including by reason of a Policy Provider Election with respect to one or more Series G-1 Equipment Notes), or otherwise, the Maximum Commitment shall automatically be reduced to an amount equal to such reduced Required Amount (as calculated by the Borrower).  The Borrower shall give notice of any such automatic reduction of the Maximum Commitment to the Primary Liquidity Provider within two Business Days thereof.  The failure by the Borrower to furnish any such notice shall not affect such automatic reduction of the Maximum Commitment.

 

(b)                                 Termination.  Upon the making of any Provider Advance or the  Special Termination Advance or the making of or conversion to a Final Advance hereunder or the occurrence of the Termination Date, the obligation of the Primary Liquidity Provider to make

 

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further Advances hereunder shall automatically and irrevocably terminate, and the Borrower shall not be entitled to request any further Borrowing hereunder.

 

Section 2.05                            Repayments of Interest Advances, the Special Termination Advance or the Final Advance.  Subject to Sections 2.06, 2.07 and 2.09, the Borrower hereby agrees, without notice of an Advance or demand for repayment from the Primary Liquidity Provider (which notice and demand are hereby waived by the Borrower), to pay, or to cause to be paid, to the Primary Liquidity Provider on each date on which the Primary Liquidity Provider shall make an Interest Advance, the Special Termination Advance or the Final Advance, an amount equal to (a) the amount of such Advance (any such Advance, until repaid, is referred to herein as an “Unpaid Advance”), plus (b) interest on the amount of each such Unpaid Advance as provided in Section 3.07; provided, however, that if (i) the Primary Liquidity Provider shall make a Provider Advance at any time after making one or more Interest Advances which shall not have been repaid in accordance with this Section 2.05 or (ii) this Primary Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility at any time when unreimbursed Interest Advances have reduced the Maximum Available Commitment to zero, then such Interest Advances shall cease to constitute Unpaid Advances and shall be deemed to have been changed into an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may be, for all purposes of this Agreement (including, for the purpose of determining when such Interest Advance is required to be repaid to the Primary Liquidity Provider in accordance with Section 2.06 and for the purposes of Section 2.06(b)); provided, further, that amounts in respect of a Special Termination Advance withdrawn from the Class G-1 Primary Cash Collateral Account for the purpose of paying interest on the Class G-1 Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being an “Applied Special Termination Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon; and provided, further, that if, following the making of a Special Termination Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Special Termination Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  The Borrower and the Primary Liquidity Provider agree that the repayment in full of each Interest Advance, Special Termination Advance and Final Advance on the date such Advance is made is intended to be a contemporaneous exchange for new value given to the Borrower by the Primary Liquidity Provider.

 

Section 2.06                            Repayments of Provider Advances.  (a) Amounts advanced hereunder in respect of a Provider Advance shall be deposited in the Class G-1 Primary Cash Collateral Account, invested and withdrawn from the Class G-1 Primary Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor Agreement.  The Borrower agrees to pay to the Primary Liquidity Provider, on each Regular Distribution Date, commencing on the first Regular Distribution Date after the making of a Provider Advance, interest on the principal amount of any such Provider Advance as provided in Section 3.07; provided, however, that amounts in respect of a Provider Advance withdrawn from the Class G-1 Primary Cash Collateral Account for the purpose of paying interest on the Class G-1 Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being (y) in the case of a Downgrade Advance, an “Applied Downgrade Advance” and (z) in the case

 

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of a Non-Extension Advance, an “Applied Non-Extension Advance” and, together with an Applied Downgrade Advance, an “Applied Provider Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable; and provided, further, that if, following the making of a Provider Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Provider Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the Class G-1 Primary Cash Collateral Account on account of a reduction in the Required Amount, the Borrower shall repay to the Primary Liquidity Provider a portion of the Provider Advances in a principal amount equal to the amount of such reduction, plus interest on the principal amount prepaid as provided in Section 3.07.

 

(b)                                 At any time when an Applied Provider Advance (or any portion thereof) is outstanding, upon the deposit in the Class G-1 Primary Cash Collateral Account of any amount pursuant to Section 2.4(a) of the Intercreditor Agreement or clause fourth of Section 3.2 of the Intercreditor Agreement (any such amount being a “Replenishment Amount”) for the purpose of replenishing or increasing the balance thereof up to the amount of the Required Amount at such time, (i) the aggregate outstanding principal amount of all Applied Provider Advances (and of Provider Advances treated as an Interest Advance for purposes of determining the Applicable Liquidity Rate for interest payable thereon) shall be automatically reduced by the amount of such Replenishment Amount and (ii) the aggregate outstanding principal amount of all Unapplied Provider Advances shall be automatically increased by the amount of such Replenishment Amount.

 

(c)                                  Upon the provision of a Replacement Primary Liquidity Facility in replacement of this Agreement in accordance with Section 3.6(e) or 2.7(c) of the Intercreditor Agreement, amounts remaining on deposit in the Class G-1 Primary Cash Collateral Account after giving effect to any Applied Provider Advance on the date of such replacement shall be reimbursed to the Primary Liquidity Provider, but only to the extent such amounts are necessary to repay in full to the Primary Liquidity Provider all amounts owing to it hereunder.

 

Section 2.07                            Payments to the Primary Liquidity Provider Under the Intercreditor Agreement.  In order to provide for payment or repayment to the Primary Liquidity Provider of any amounts hereunder, the Intercreditor Agreement provides that amounts available and referred to in Articles II and III of the Intercreditor Agreement, to the extent payable to the Primary Liquidity Provider pursuant to the terms of the Intercreditor Agreement (including, without limitation, Sections 3.6(f) and 2.7(c) of the Intercreditor Agreement), shall be paid to the Primary Liquidity Provider in accordance with the terms thereof.  Amounts so paid to, and not required to be returned by, the Primary Liquidity Provider shall be applied by the Primary Liquidity Provider to Liquidity Obligations then due and payable in the order of priority required by the applicable provisions of Articles II and III of the Intercreditor Agreement or, if not provided for in the Intercreditor Agreement, then in such manner as the Primary Liquidity Provider shall deem appropriate, and shall discharge in full the corresponding obligations of the Borrower hereunder.

 

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Section 2.08                            Book Entries.  The Primary Liquidity Provider shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower resulting from Advances made from time to time and the amounts of principal and interest payable hereunder and paid from time to time in respect thereof; provided, however, that the failure by the Primary Liquidity Provider to maintain such account or accounts shall not affect the obligations of the Borrower in respect of Advances.

 

Section 2.09                            Payments from Available Funds Only.  All payments to be made by the Borrower under this Agreement shall be made only from amounts that constitute Scheduled Payments or Special Payments or payments under the Fee Letter, Section 7.1 of the Participation Agreements, and Section 6 of the Note Purchase Agreement, and only to the extent that the Borrower shall have sufficient income or proceeds therefrom to enable the Borrower to make payments in accordance with the terms hereof after giving effect to the priority of payments provisions set forth in the Intercreditor Agreement.  The Primary Liquidity Provider agrees that it shall look solely to such amounts to the extent available for distribution to it as provided in the Intercreditor Agreement and this Agreement and that the Borrower, in its individual capacity, is not personally liable to it for any amounts payable or liability under this Agreement except as expressly provided in this Agreement or the Intercreditor Agreement.  Amounts on deposit in the Class G-1 Primary Cash Collateral Account shall be available to the Borrower to make payments under this Agreement only to the extent and for the purposes expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.

 

Section 2.10                            Extension of Expiry Date; Non-Extension Advance.  No earlier than the 60th day and no later than the 40th day prior to the then effective Expiry Date (unless such Expiry Date is on or after the date that is 15 days after the Final Legal Distribution Date for the Class G-1 Certificates), the Borrower shall request that the Primary Liquidity Provider extend the Expiry Date to the earlier of (i) the date that is 15 days after the Final Legal Distribution Date for the Class G-1 Certificates and (ii) the date that is the day immediately preceding the 364th day occurring after the last day of the Consent Period (as hereinafter defined).  Whether or not the Borrower has made such request, the Primary Liquidity Provider shall advise the Borrower and the Policy Provider, no earlier than the 40th day (or, if earlier, the date of the Primary Liquidity Provider’s receipt of such request, if any, from the Borrower) and no later than the 25th day prior to the then effective Expiry Date (such period the “Consent Period”), whether, in its sole discretion, it agrees to so extend the Expiry Date.  If the Primary Liquidity Provider advises the Borrower and the Policy Provider on or before the date on which the Consent Period ends that such Expiry Date shall not be so extended, or fails to irrevocably and unconditionally advise the Borrower and the Policy Provider on or before the date on which the Consent Period ends that such Expiry Date shall be so extended  (and, in each case, if the Primary Liquidity Provider shall not have been replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and after the date on which the Consent Period ends (but prior to the then effective Expiry Date) to request a Non-Extension Advance in accordance with Section 2.2(b) and Section 3.6(d) of the Intercreditor Agreement.

 

Section 2.11                            Right to Further Extend Expiry Date.  Subject to the proviso in the immediately succeeding sentence and at no additional cost or expense of the Borrower or JetBlue, the Primary Liquidity Provider shall have the right at any time and without the consent of the Borrower to extend the then effective Expiry Date to the date that is up to 15 days after the

 

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Final Legal Distribution Date for the Class G-1 Certificates by giving not less than five nor more than ten days’ prior written notice of such extension to the Borrower, the Trustee, each Rating Agency and JetBlue (which notice shall specify the effective date of such extension (the “Extension Effective Date”)).  On the Extension Effective Date, the then effective Expiry Date shall be so extended without any further act; provided, however, that if prior to the Extension Effective Date a Downgrade Event shall have occurred, then the effective Expiry Date shall not be so extended.

 

ARTICLE III

OBLIGATIONS OF THE BORROWER

 

Section 3.01                            Increased Costs.  The Borrower shall pay to the Primary Liquidity Provider from time to time such amounts as may be necessary to compensate the Primary Liquidity Provider for any costs incurred by the Primary Liquidity Provider which are attributable to its making or maintaining any Advances hereunder or its obligation to make any such Advances hereunder, or any reduction in any amount receivable by the Primary Liquidity Provider under this Agreement or the Intercreditor Agreement in respect of any such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any change after the date of this Agreement in U.S. federal, state, or municipal, or any foreign laws or regulations, or the adoption or making after such date of any interpretation, regulation, directive, or requirement applying to a class of banks including the Primary Liquidity Provider whether or not having the force of law, by any court or governmental or monetary authority charged with the interpretation or administration thereof (a “Regulatory Change”), which: (1) changes the basis of taxation of any amounts payable to the Primary Liquidity Provider under this Agreement in respect of any such Advances or such obligation (other than Excluded Taxes or any Non-Excluded Taxes); or (2) imposes or modifies any reserve, special deposit, compulsory loan or similar requirements relating to any extensions of credit or other assets of, or any deposits with other liabilities of, the Primary Liquidity Provider (including any such Advances or such obligation or any deposits referred to in the definition of LIBOR or related definitions).  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.01 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.01 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.01; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.01 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.01 of the effect of any Regulatory Change on its costs of

 

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making or maintaining Advances or its obligation to make any Advances hereunder or on amounts receivable by it in respect of Advances, and of the additional amounts required to compensate the Primary Liquidity Provider in respect of any Additional Costs, shall be prima facie evidence of the amount owed under this Section 3.01.

 

Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.02                            Capital Adequacy.  If (1) the adoption, after the date hereof, of any applicable governmental law, rule or regulation regarding capital adequacy, (2) any change, after the date hereof, in the interpretation or administration of any such law, rule or regulation by any central bank or other governmental authority charged with the interpretation or administration thereof or (3) compliance by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider with any applicable guideline or request from any central bank or other governmental authority (whether or not having the force of law), issued after the date hereof, that constitutes a change in the nature described in clause (2), has the effect of requiring an increase in the amount of capital required to be maintained by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider, and such increase is based upon the Primary Liquidity Provider’s obligations hereunder (including funded obligations) and other similar obligations, the Borrower shall, subject to the provisions of the next paragraph, pay to the Primary Liquidity Provider from time to time such additional amount or amounts as are necessary to compensate the Primary Liquidity Provider for the portion of such increase as shall be reasonably allocable to the Primary Liquidity Provider’s obligations to the Borrower hereunder.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.02 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

From and after the Extension Effective Date, the Primary Liquidity Provider will be entitled to compensation pursuant to this Section 3.02 only to the extent that the Primary Liquidity Provider would have been so entitled if the Extension Effective Date had not occurred.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.02 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.02; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.02 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.02 of the effect of any increase in the amount of capital required to be maintained by the Primary Liquidity Provider and of the amount allocable to the

 

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Primary Liquidity Provider’s obligations to the Borrower hereunder shall be prima facie evidence of the amounts owed under this Section 3.02.

 

Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.03                            Payments Free of Deductions.  (a)  All payments made by the Borrower under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes, excluding Excluded Taxes (such non-excluded taxes being referred to herein, collectively, as “Non-Excluded Taxes”).  If any Non-Excluded Taxes are required to be withheld or deducted from any amounts payable to the Primary Liquidity Provider under this Agreement, the Borrower shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Non-Excluded Taxes (and any additional Non-Excluded Taxes in respect of the payment required under clause (ii) below) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Primary Liquidity Provider an additional amount which (after deduction of all such Non-Excluded Taxes) shall be sufficient to yield to the Primary Liquidity Provider the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment hereunder, the Borrower shall furnish to the Primary Liquidity Provider the original or a certified copy of (or other documentary evidence of) the payment of the Non-Excluded Taxes applicable to such payment.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise materially disadvantageous to the Primary Liquidity Provider.  The Primary Liquidity Provider shall deliver to the Borrower such certificates and documents, including, without limitation, original W-8BEN or W-8ECI forms, or any successor forms, as may be reasonably requested by the Borrower and required by applicable law to establish that payments hereunder are exempt from (or entitled to a reduced rate of) withholding Tax.

 

(b)                                 All payments (including, without limitation, Advances) made by the Primary Liquidity Provider under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes.  If any Taxes are required to be withheld or deducted from any amounts payable to the Borrower under this Agreement, the Primary Liquidity Provider shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Taxes (and any additional Taxes in respect of the additional amounts payable under clause (ii) hereof) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Borrower an additional amount which (after deduction of all such Taxes) shall be sufficient to yield to the Borrower the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment under this Section 3.03(b), the Primary Liquidity Provider shall furnish to the Borrower the

 

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original or a certified copy of (or other documentary evidence of) the payment of the Taxes applicable to such payment.

 

(c)                                  If any exemption from, or reduction in the rate of, any Taxes is reasonably available to the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) tax, the Borrower shall deliver to the Primary Liquidity Provider such form or forms and such other evidence of the eligibility of the Borrower for such exemption or reduction as the Primary Liquidity Provider may reasonably identify to the Borrower as being required as a condition to exemption from, or reduction in the rate of, any Taxes.

 

Section 3.04                            Payments.  The Borrower shall make or cause to be made each payment to the Primary Liquidity Provider under this Agreement so as to cause the same to be received by the Primary Liquidity Provider not later than 1:00 P.M. (New York City time) on the day when due.  The Borrower shall make all such payments in lawful money of the United States of America, to the Primary Liquidity Provider in immediately available funds, by wire transfer to Deutsche Bank Trust Co. Americas, New York, ABA No. 021001033, Swift Code: BKTR US 33, Account Holder: Landesbank Baden-Württemberg, Stuttgart, Account No. 04-095-107, Swift Code: SOLADEST, Reference:  3371 Loan Administration, JetBlue EETC 2004-2, or such other account as the Primary Liquidity Provider shall notify the Borrower.

 

Section 3.05                            Computations.  All computations of interest based on the Base Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the LIBOR shall be made on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.

 

Section 3.06                            Payment on Non-Business Days.  Whenever any payment to be made hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day (and if so made, shall be deemed to have been made when due).

 

Section 3.07                            Interest.  (a)  Subject to Section 2.09, the Borrower shall pay, or shall cause to be paid, without duplication, interest on (i) the unpaid principal amount of each Advance from and including the date of such Advance (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, from and including the date on which the amount thereof was withdrawn from the Class G-1 Primary Cash Collateral Account to pay interest on the Class G-1 Certificates) to but excluding the date such principal amount shall be paid in full (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, the date on which the Class G-1 Primary Cash Collateral Account is fully replenished in respect of such Advance) and (ii) any other amount due hereunder (whether fees, commissions, expenses or other amounts or to the extent permitted by applicable law,  installments of interest on Advances or any such other amount) which is not paid when due (whether at stated maturity, by acceleration or otherwise) from and including the due date thereof to but excluding the date such amount is paid in full, in each such case, at a fluctuating interest rate per annum for each day equal to the Applicable Liquidity Rate (as defined below) for such Advance or such other amount as in effect for such day, but in no event at a rate per annum greater than the maximum rate permitted by applicable law; provided, however, that, if at any

 

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time the otherwise applicable interest rate as set forth in this Section 3.07 shall exceed the maximum rate permitted by applicable law, then any subsequent reduction in such interest rate shall not reduce the rate of interest payable pursuant to this Section 3.07 below the maximum rate permitted by applicable law until the total amount of interest accrued equals the amount of interest that would have accrued if such otherwise applicable interest rate as set forth in this Section 3.07 had at all times been in effect.  Nothing contained in this Section 3.07 shall require the Borrower to pay any amount under this Section 3.07 other than as specified in Section 2.09.

 

(b)                                 Except as provided in Section 3.07(e), each Advance shall be either a Base Rate Advance or a LIBOR Advance as provided in this Section or Section 3.10.  Each such Advance shall be a Base Rate Advance for the period from the date of its borrowing to (but excluding) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Advance.  Thereafter, such Advance shall be a LIBOR Advance.

 

(c)                                  Each LIBOR Advance shall bear interest during each Interest Period at a rate per annum equal to LIBOR for such Interest Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on the last day of such Interest Period and, in the event of the payment of principal of such LIBOR Advance on a day other than such last day, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(d)                                 Each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin, payable in arrears on each Regular Distribution Date and, in the event of the payment of principal of such Base Rate Advance on a day other than a Regular Distribution Date, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(e)                                  Each (i) outstanding Unapplied Non-Extension Advance and (ii) outstanding Unapplied Downgrade Advance with respect to which the Primary Liquidity Provider has elected pursuant to the provision in Section 3.6(e)(i)(C) of the Intercreditor Agreement not to be replaced, from the date of such election, shall bear interest in an amount equal to the Investment Earnings on amounts on deposit in the Class G-1 Primary Cash Collateral Account plus the Applicable Margin, payable in arrears on each Regular Distribution Date.

 

(f)                                    Each amount not paid when due hereunder (whether fees, commissions, expenses or other amounts or, to the extent permitted by applicable law, installments of interest on Advances but excluding Advances) shall bear interest at a rate per annum equal to the Base Rate plus 1.00% per annum.

 

(g)                                 Each change in the Base Rate shall become effective immediately.  The rates of interest specified in this Section 3.07 with respect to any Advance or other amount shall be referred to as the “Applicable Liquidity Rate.”

 

Section 3.08                            Replacement of Borrower.  Subject to Section 5.02, from time to time and subject to the successor Borrower’s meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor Agreement applicable to the Subordination Agent, upon the effective date

 

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and time specified in a written and completed Notice of Replacement Subordination Agent in substantially the form of Annex VI (a “Notice of Replacement Subordination Agent”) delivered to the Primary Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be substituted for as the Borrower for all purposes hereunder.

 

Section 3.09                            Funding Loss Indemnification.  The Borrower shall pay to the Primary Liquidity Provider, upon the request of the Primary Liquidity Provider, such amount or amounts as shall be sufficient (in the reasonable opinion of the Primary Liquidity Provider) to compensate it for any loss, cost, or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the Primary Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of anticipated profits) incurred as a result of:

 

(1)                                  Any repayment of a LIBOR Advance on a date other than the last day of the Interest Period for such Advance; or

 

(2)                                  Any failure by the Borrower to borrow a LIBOR Advance on the date for borrowing specified in the relevant notice under Section 2.02.

 

Section 3.10                            Illegality.  Notwithstanding any other provision in this Agreement, if any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Primary Liquidity Provider (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the Primary Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the Borrower by the Primary Liquidity Provider, the outstanding principal amount of the LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon demand of the Primary Liquidity Provider, if such change or compliance with such request, in the judgment of the Primary Liquidity Provider, requires immediate repayment; or (b) at the expiration of the last Interest Period to expire before the effective date of any such change or request.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid or cure the aforesaid illegality and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

ARTICLE IV

CONDITIONS PRECEDENT

 

Section 4.01                            Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied or waived by the appropriate party or parties:

 

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(a)                                  The Primary Liquidity Provider shall have received on or before the Closing Date each of the following and in the case of each document delivered pursuant to paragraphs (i), (ii) and (iii), in form and substance satisfactory to the Primary Liquidity Provider:

 

(i)                                     This Agreement duly executed on behalf of the Borrower;

 

(ii)                                  The Intercreditor Agreement, Tax Letter and Fee Letter duly executed on behalf of each of the parties thereto (other than the Primary Liquidity Provider);

 

(iii)                               Fully executed copies of each of the Operative Agreements executed and delivered on or before the Closing Date (other than this Agreement, the Intercreditor Agreement, Tax Letter and the Fee Letter);

 

(iv)                              A copy of the Prospectus Supplement and specimen copies of the Class G-1 Certificates;

 

(v)                                 An executed copy of each opinion, document, instrument and certificate delivered on or before the Closing Date pursuant to the Class G-1 Trust Agreement, the Intercreditor Agreement, the Note Purchase Agreement and the other Operative Agreements entered into on or prior to the date hereof (in the case of each such opinion, other than the opinion of counsel for the Underwriters, either addressed to the Primary Liquidity Provider or accompanied by a letter from the counsel rendering such opinion to the effect that the Primary Liquidity Provider is entitled to rely on such opinion as of its date as if it were addressed to the Primary Liquidity Provider);

 

(vi)                              Evidence that there shall have been made and shall be in full force and effect, all filings, recordings and/or registrations, and there shall have been given or taken any notice or other similar action as may be reasonably necessary or, to the extent reasonably requested by the Primary Liquidity Provider, reasonably advisable, in order to establish, perfect, protect and preserve the right, title and interest, remedies, powers, privileges, liens and security interests of, or for the benefit of, the Trustee and the Primary Liquidity Provider created by the Operative Agreements executed and delivered on or before the Closing Date;

 

(vii)                           An agreement from JetBlue, pursuant to which JetBlue agrees to provide copies of quarterly financial statements and audited annual financial statements to the Primary Liquidity Provider provided that so long as JetBlue is subject to the reporting requirements of the Securities Exchange Act of 1934, such information will be considered provided if it is made available on the EDGAR database of the Securities and Exchange Commission;

 

(viii)                        Legal opinions from (a) Morris, James, Hitchens & Williams LLP, special counsel to the Borrower and (b) Vedder, Price, Kaufman & Kammholz, P.C., special counsel to JetBlue, each in form and substance reasonably satisfactory to the Primary Liquidity Provider; and

 

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(ix)                                Such other documents, instruments, opinions and approvals as the Primary Liquidity Provider shall have reasonably requested.

 

(b)                                 The following statements shall be true on and as of the Effective Date:

 

(i)                                     The representations and warranties in the Note Purchase Agreement and each of the Participation Agreements entered into on or prior to the date hereof are true and correct on and as of the Effective Date as though made on and as of the Effective Date;

 

(ii)                                  No event has occurred and is continuing, or would result from the entering into of this Agreement or the making of any Advance, which constitutes a Liquidity Event of Default; and

 

(iii)                               There has been no material adverse change in the financial condition or results of operations of JetBlue and its subsidiaries taken as a whole since December 31, 2003.

 

(c)                                  The Primary Liquidity Provider shall have received payment in full of all fees and other sums required to be paid to or for the account of the Primary Liquidity Provider on or prior to the Effective Date.

 

(d)                                 All conditions precedent to the issuance of the Certificates under the Trust Agreements shall have been satisfied or waived, all conditions precedent to the effectiveness of the other Liquidity Facilities shall have been satisfied or waived, and all conditions precedent to the purchase of the Certificates by the Underwriters under the Underwriting Agreement shall have been satisfied (unless any of such conditions precedent shall have been waived by the Underwriters).

 

(e)                                  The Borrower shall have received a certificate, dated the date hereof, signed by a duly authorized representative of the Primary Liquidity Provider, certifying that all conditions precedent to the effectiveness of Section 2.01 have been satisfied or waived by the Primary Liquidity Provider.

 

Section 4.02                            Conditions Precedent to Borrowing.  The obligation of the Primary Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, on or prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.

 

ARTICLE V

COVENANTS

 

Section 5.01                            Affirmative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider

 

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hereunder, the Borrower shall, unless the Primary Liquidity Provider shall otherwise consent in writing:

 

(a)                                  Performance of Agreements.  Punctually pay or cause to be paid all amounts payable by it under this Agreement and the other Operative Agreements and observe and perform in all material respects the conditions, covenants and requirements applicable to it contained in this Agreement and the other Operative Agreements.

 

(b)                                 Reporting Requirements.  Furnish to the Primary Liquidity Provider with reasonable promptness, such information and data with respect to the transactions contemplated by the Operative Agreements as from time to time may be reasonably requested by the Primary Liquidity Provider; and permit the Primary Liquidity Provider, upon reasonable notice, to inspect the Borrower’s books and records with respect to such transactions and to meet with officers and employees of the Borrower to discuss such transactions.

 

(c)                                  Certain Operative Agreements.  Furnish to the Primary Liquidity Provider with reasonable promptness any Operative Agreement entered into after the date hereof as from time to time may be reasonably requested by the Primary Liquidity Provider.

 

Section 5.02                            Negative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider hereunder, the Borrower shall not appoint or permit or suffer to be appointed any successor Borrower without the written consent of the Primary Liquidity Provider, which consent shall not be unreasonably withheld or delayed.

 

ARTICLE VI

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

Section 6.01                            Liquidity Events of Default and Special Termination.  (a) If (i) any Liquidity Event of Default has occurred and is continuing and (ii) there is a Performing Note Deficiency, the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Termination Notice, the effect of which shall be to cause (A) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Termination Notice is received by the Borrower and JetBlue, (B) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Final Advance in accordance with Section 2.02(d) and Section 3.6(i) of the Intercreditor Agreement, (C) all other outstanding Advances to be automatically converted into Final Advances for purposes of determining the Applicable Liquidity Rate for interest payable thereon, and (D) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

(b)                                 If the aggregate Pool Balance of the Class G-1 Certificates and Class G-2 Certificates is greater than the aggregate outstanding principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes (other than any Series G-1 Equipment Notes

 

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or Series G-2 Equipment Notes previously sold or with respect to which the collateral securing such Series G-1 Equipment Notes or Series G-2 Equipment Notes has been disposed of) at any time during the 18-month period prior to November 15, 2016 the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Special Termination Notice, the effect of which shall be to cause (i) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Special Termination Notice is received by the Borrower and JetBlue, (ii) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Special Termination Advance in accordance with Section 2.02(e) and Section 3.6(k) of the Intercreditor Agreement, and (iii) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

ARTICLE VII

MISCELLANEOUS

 

Section 7.01                            Amendments, Etc.  No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Primary Liquidity Provider, and, in the case of an amendment, the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

Section 7.02                            Notices, Etc.  Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be made in writing (including sent by telecopier) and to the following address:

 

Borrower:                                            Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE  19890-0001

Attention:  Corporate Trust Administration

Telephone: 302-651-1000

Telecopy: 302-651-8882

 

Liquidity

Provider:                                                Landesbank Baden-Württemberg

Am Hauptbahnhof 2
D-70173 Stuttgart
Germany
Attention: Structured Finance
Telephone: +49-711-124-9757
Telecopy: +49-711-124-9747

 

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with a copy of any Notice of Borrowing to:

 

Landesbank Baden-Württemberg

280 Park Avenue, West Building, 31st Floor
New York, New York 10017
Attention: Claudia Rothe, Vice President

Bette Smolen, Assistant Vice President
Vincent Chu

Telephone: 212-584-1700
Telecopy: 212-584-1729

 

or, as to each of the foregoing, at such other address as shall be designated by such Person in a Written Notice to the others.  All such notices and communications shall be effective (i) if given by telecopier, when transmitted to the telecopier number specified above with receipt confirmed, and received in legible form (ii) if given by mail, five Business Days after being deposited in the mails addressed as specified above, and (iii) if given by other means, when delivered at the address specified above, except that written notices to the Primary Liquidity Provider pursuant to the provisions of Articles II and III shall not be effective until received by the Primary Liquidity Provider, subject to the last sentence of Section 2.02(f).  A copy of all notices delivered hereunder to either party shall in addition be delivered to each of the parties to the Participation Agreements at their respective addresses set forth therein.

 

Section 7.03                            No Waiver; Remedies.  No failure on the part of the Primary Liquidity Provider to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

Section 7.04                            Further Assurances.  The Borrower agrees to do such further acts and things and to execute and deliver to the Primary Liquidity Provider such additional assignments, agreements, powers and instruments as the Primary Liquidity Provider may reasonably require or deem advisable to carry into effect the purposes of this Agreement and the other Operative Agreements or to better assure and confirm unto the Primary Liquidity Provider its rights, powers and remedies hereunder and under the other Operative Agreements.

 

Section 7.05                            Indemnification; Survival of Certain Provisions.  The Primary Liquidity Provider shall be indemnified hereunder to the extent and in the manner described in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements.  In addition, the Borrower agrees to indemnify, protect, defend and hold harmless each Liquidity Indemnitee from, against and in respect of, and shall pay on demand, all Expenses of any kind or nature whatsoever (other than any Expenses of the nature described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether indemnified against pursuant to said Sections or in such Fee Letter)) that may be imposed on, incurred by or asserted against any  Liquidity Indemnitee, in any way relating to, resulting from, or arising out of or in connection with any action, suit or proceeding by any third party against such Liquidity Indemnitee and relating to this Agreement, the Intercreditor Agreement, the Fee Letter, the Tax Letter or any Participation Agreement; provided, however, that the Borrower shall not be required to indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross negligence or willful

 

24



 

misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense or (iii) attributable to the failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in this Agreement, the Intercreditor Agreement, the Fee Letter or any other Operative Agreement to which it is a party.  The indemnities contained in this Section 7.05, in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 shall survive the termination of this Agreement.

 

Section 7.06                            Liability of the Primary Liquidity Provider.  (a)  Neither the Primary Liquidity Provider nor any of its officers, directors, employees or Affiliates shall be liable or responsible for: (i) the use which may be made of this Agreement or the Advances or any acts or omissions of the Borrower or any beneficiary or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Primary Liquidity Provider against delivery of a Notice of Borrowing and other documents which do not comply with the terms hereof; provided, however, that the Borrower shall have a claim against the Primary Liquidity Provider, and the Primary Liquidity Provider shall be liable to the Borrower, to the extent of any damages (other than punitive damages (the right to receive punitive damages being hereby waived)) suffered by the Borrower which were the result of (A) the Primary Liquidity Provider’s willful misconduct or negligence in determining whether documents presented hereunder comply with the terms hereof, or (B) any breach by the Primary Liquidity Provider of any of the terms of this Agreement, including, but not limited to, the Primary Liquidity Provider’s failure to make lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing complying with the terms and conditions hereof.

 

(b)                                 Neither the Primary Liquidity Provider nor any of its officers, employees, directors or Affiliates shall be liable or responsible in any respect for (i) any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with this Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or omission which may be taken by it in good faith, absent willful misconduct or negligence (in which event the extent of the Primary Liquidity Provider’s potential liability to the Borrower shall be limited as set forth in the preceding paragraph), in connection with this Agreement or any Notice of Borrowing.

 

Section 7.07                            Costs, Expenses and Taxes.  The Borrower agrees to pay, or cause to be paid (A) subject to the terms of the Fee Letter on the Effective Date and on such later date or dates on which the Primary Liquidity Provider shall make demand, all reasonable out-of-pocket costs and expenses of the Primary Liquidity Provider in connection with the preparation, negotiation, execution, delivery, filing and recording of this Agreement, any other Operative Agreement and any other documents which may be delivered in connection with this Agreement, including, without limitation, the reasonable fees and expenses of outside counsel for the Primary Liquidity Provider and (B) on demand, all reasonable costs and expenses of the Primary Liquidity Provider (including reasonable counsel fees and expenses) in connection with (i) the enforcement of this Agreement or any other Operative Agreement, (ii) the modification or amendment of, or supplement to, this Agreement or any other Operative Agreement or such

 

25



 

other documents which may be delivered in connection herewith or therewith (whether or not the same shall become effective) or (iii) any action or proceeding relating to any order, injunction, or other process or decree restraining or seeking to restrain the Primary Liquidity Provider from paying any amount under this Agreement, the Intercreditor Agreement or any other Operative Agreement or otherwise affecting the application of funds in the Class G-1 Primary Cash Collateral Account.  In addition, the Borrower shall pay any and all recording, stamp and other similar taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, any other Operative Agreement and such other documents in connection with this Agreement, and agrees to hold the Primary Liquidity Provider harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes or fees.

 

Section 7.08                            Binding Effect; Participations.  (a)  This Agreement shall be binding upon and inure to the benefit of the Borrower and the Primary Liquidity Provider and their respective successors and assigns, except that neither the Primary Liquidity Provider (except as otherwise provided in this Section 7.08) nor the Borrower (except as contemplated by Section 3.08) shall have the right to assign its rights or obligations hereunder or any interest herein without the prior written consent of the other party, subject to the requirements of Section 7.08(b).  The Primary Liquidity Provider may grant participations herein or in any of its rights hereunder and under the other Operative Agreements to such Persons (other than JetBlue or any of its Affiliates) as the Primary Liquidity Provider may in its sole discretion select, subject to the requirements of Section 7.08(b).  No such participation by the Primary Liquidity Provider, however, shall relieve the Primary Liquidity Provider of its obligations hereunder.  In connection with any participation or any proposed participation, the Primary Liquidity Provider may disclose to the participant or the proposed participant any information that the Borrower is required to deliver or to disclose to the Primary Liquidity Provider pursuant to this Agreement.  The Borrower acknowledges and agrees that the Primary Liquidity Provider’s source of funds may derive in part from its participants.  Accordingly, references in this Agreement and the other Operative Agreements to determinations, reserve and capital adequacy requirements, increased costs, reduced receipts and the like as they pertain to the Primary Liquidity Provider shall be deemed also to include those of each of its participants that are banks (subject, in each case, to the maximum amount that would have been incurred by or attributable to the Primary Liquidity Provider directly if the Primary Liquidity Provider, rather than the participant, had held the interest participated other than as a result of a change in law following the date of any participation).

 

(b)                                 If, pursuant to Section 7.08(a) above, the Primary Liquidity Provider sells any participation in this Agreement to any bank or other entity (each, a “Participating Institution”), then, concurrently with the effectiveness of such participation, the Participating Institution shall (i) represent to the Primary Liquidity Provider (for the benefit of the Primary Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes shall be required to be withheld by the Borrower or the Primary Liquidity Provider with respect to any payments to be made to such Participating Institution in respect of this Agreement, (ii) furnish to the Primary Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, certificate or document prescribed by the

 

26



 

Internal Revenue Service certifying, in each case, such Participating Institution’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Primary Liquidity Provider and the Borrower) to provide the Primary Liquidity Provider and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8BEN or Form W-8ECI that such Participating Institution is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement.  Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) from the Participating Institution indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower shall withhold taxes as required by law from such payments at the applicable statutory rate without any obligation to make additional payments under Section 3.03.

 

(c)                                  Notwithstanding the other provisions of this Section 7.08, the Primary Liquidity Provider may assign and pledge all or any portion of the Advances owing to it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided that any payment in respect of such assigned Advances made by the Borrower to the Primary Liquidity Provider in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect of such assigned Advance to the extent of such payment.  No such assignment shall release the Primary Liquidity Provider from its obligations hereunder.

 

Section 7.09                            Severability.  Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.

 

Section 7.10                            GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Section 7.11                            Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.

 

(a)                                  Each of the parties hereto hereby irrevocably and unconditionally:

 

(i)                                     submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in respect hereof or thereof, to the non-exclusive general jurisdiction of the courts of the State of New York sitting in the City of New York, the

 

27



 

courts of the United States of America for the Southern District of New York, and the appellate courts from any thereof;

 

(ii)                                  consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(iii)                               agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to each party hereto at its address set forth in Section 7.02, or at such other address of which the Primary Liquidity Provider shall have been notified pursuant thereto; and

 

(iv)                              agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

 

(b)                                 THE BORROWER AND THE PRIMARY LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law and statutory claims.  The Borrower and the Primary Liquidity Provider each warrant and represent that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with such legal counsel.  THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

 

(c)                                  The Primary Liquidity Provider hereby waives any immunity it may have from the jurisdiction of the courts of the United States or of any State and waives any immunity any of its properties located in the United States may have from attachment or execution upon a judgment entered by any such court under the United States Foreign Sovereign Immunities Act of 1976 or any similar successor legislation.

 

Section 7.12                            Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.

 

Section 7.13                            Entirety.  This Agreement and the other Operative Agreements constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements of such parties.

 

28



 

Section 7.14                            Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

Section 7.15                            PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE PRIMARY LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

 

Section 7.16                            Transfer.  The Primary Liquidity Provider hereby acknowledges and consents to the Transfer contemplated by the Assignment and Assumption Agreement.

 

29



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first set forth above.

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent and Trustee, as Borrower

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

 

Name: W. Chris Sponenberg

 

 

Title: Vice President

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,

 

as Primary Liquidity Provider

 

 

 

By:

 /s/ Dr. Hans-Matthias Neugebauer

 

 

 

Name: Dr. Hans-Matthias Neugebauer

 

 

Title: SVP

 

 

 

By:

 /s/ Jeannine Eder

 

 

 

Name: Jeannine Eder

 

 

Title: VP

 

30



 

ANNEX I TO
REVOLVING CREDIT AGREEMENT

 

INTEREST ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of an Interest Advance by the Primary Liquidity Provider to be used, subject to clause(3)(v) below, for the payment of interest on the Class G-1 Certificates which was payable on                                    (the “Distribution Date”) in accordance with the terms and provisions of the Class G-1 Trust Agreement and the Class G-1 Certificates, which Advance is requested to be made on                       .  The Interest Advance should be transferred to account                   .

 

(3)           The amount of the Interest Advance requested hereby (i) is $                   , to be applied in respect of the payment of interest which was due and payable on the Class G-1 Certificates on such Distribution Date, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-2 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-1 Certificates, the Class G-1 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), (iv) does not exceed the Maximum Available Commitment on the date hereof, (v) does not include any amount of interest which was due and payable on the Class G-1 Certificates on such Distribution Date but which remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date, and (vi) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall apply the same in accordance with the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

1



 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the making of the Interest Advance as requested by this Notice of Borrowing shall automatically reduce, subject to reinstatement in accordance with the terms of the Liquidity Agreement, the Maximum Available Commitment by an amount equal to the amount of the Interest Advance requested to be made hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing and such reduction shall automatically result in corresponding reductions in the amounts available to be borrowed pursuant to a subsequent Advance.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the        day of                     ,       .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO
INTEREST ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with Interest Advance Notice of Borrowing]

 

4



 

ANNEX II TO
REVOLVING CREDIT AGREEMENT

 

NON-EXTENSION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Non-Extension Advance by the Primary Liquidity Provider to be used for the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, which Advance is requested to be made on                ,        .  The Non-Extension Advance should be transferred to                   .

 

(3)           The amount of the Non-Extension Advance requested hereby (i) is $                           .    , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of the principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-2 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-1 Certificates, the Class G-1 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower will deposit such amount in the Class G-1 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Non-Extension Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

1



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the        day of             ,       .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

2



 

SCHEDULE I TO NON-EXTENSION ADVANCE

 

NOTICE OF BORROWING
[Insert copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]

 

3



 

ANNEX III TO
REVOLVING CREDIT AGREEMENT

 

DOWNGRADE ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Downgrade Advance by the Primary Liquidity Provider to be used for the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement by reason of the downgrading of the relevant rating of the Primary Liquidity Provider issued by either Rating Agency below the Threshold Rating, which Advance is requested to be made on                      .  The Downgrade Advance should be transferred to                 .

 

(3)           The amount of the Downgrade Advance requested hereby (i) is $                , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates or interest on the Class G-2 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-1 Certificates, the Class G-1 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-1 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Downgrade Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary

 

1



 

Liquidity Provider of the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the          day of                 ,         .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO
DOWNGRADE ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]

 

4



 

ANNEX IV TO
REVOLVING CREDIT AGREEMENT

 

FINAL ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Final Advance by the Primary Liquidity Provider to be used for the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider with respect to the Liquidity Agreement, which Advance is requested to be made on                       .

 

(3)           The amount of the Final Advance requested hereby (i) is $                      , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-2 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-1 Certificates, the Class G-1 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-1 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

(5)           The Borrower hereby requests that the Advance requested hereby be a Base Rate Advance and that such Base Rate Advance be converted into a LIBOR Advance on the third London/Stuttgart Business Day following your receipt of this notice.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Final Advance as requested by this Notice of Borrowing shall automatically and

 

1



 

irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Final Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the          day of                ,         .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]

 

4



 

ANNEX V TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF TERMINATION

 

[Date]

 

Wilmington Trust Company
Rodney Square North
1100 North Market Square
Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-1 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(a) of the Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default and the existence of a Performing Note Deficiency (each as defined therein), we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF TERMINATION” PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,

 

as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

cc:                                 Wilmington Trust Company, as Trustee

 

2



 

ANNEX VI TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF REPLACEMENT SUBORDINATION AGENT

 

[Date]

 

Attention:

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-1 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

For value received, the undersigned hereby irrevocably transfers to:

 

 

 

 

 

 

[Name of Transferee]

 

 

 

 

 

 

 

[Address of Transferee]

 

 

 

 

all rights and obligations of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement referred to above.  The transferee has succeeded the undersigned as Borrower and Subordination Agent under the Intercreditor Agreement referred to in the first paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of the Intercreditor Agreement.

 

By this transfer, all rights of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement are transferred to the transferee and the transferee shall hereafter have the sole rights and obligations as Borrower and Subordination Agent thereunder.  The undersigned shall pay any costs and expenses of such transfer, including, but not limited to, transfer taxes or governmental charges.

 

We ask that this transfer be effective as of                ,        .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

1



 

ANNEX VII TO
REVOLVING CREDIT AGREEMENT

 

SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Primary Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Special Termination Advance by the Primary Liquidity Provider to be used for the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider with respect to the Primary Liquidity Agreement, which Advance is requested to be made on                     .

 

(3)           The amount of the Special Termination Advance requested hereby (i) is $                    , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-1 Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-2 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-1 Certificates, the Class G-1 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-1 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(k) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Primary Liquidity Agreement, (A) the making of the Special Termination Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Primary Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Special Termination Advance requested by this Notice

 

1



 

of Borrowing, the Borrower shall not be entitled to request any further Advances under the Primary Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the         day of                 ,        .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Special Termination Advance Notice of Borrowing]

 

4



 

ANNEX VIII TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF SPECIAL TERMINATION

 

[Date]

 

Wilmington Trust Company
Rodney Square North
1100 North Market Square
Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-1 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Primary Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(b) of the Primary Liquidity Agreement, by reason of [the aggregate Pool Balance of the Class G-1 Certificates and Class G-2 Certificates exceeding the aggregate outstanding principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes (other than any Series G-1 Equipment Notes or Series G-2 Equipment Notes previously sold or with respect to which the collateral securing such Series G-1 Equipment Notes or Series G-2 Equipment Notes has been disposed of) during the 18-month period prior to [Class G-1 Final Legal Distribution Date], we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Primary Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Special Termination Advance under the Primary Liquidity Agreement pursuant to Section 3.6(k) of the Intercreditor Agreement (as defined in the Primary Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF SPECIAL TERMINATION” PROVIDED FOR UNDER THE PRIMARY LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE PRIMARY LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,

 

as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

cc:                                 Wilmington Trust Company, as Trustee

 

2


EX-4.6 8 a04-11378_4ex4d6.htm EX-4.6

Exhibit 4.6

 

EXECUTION COPY

 

 

REVOLVING CREDIT AGREEMENT

(2004-2G-2)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY,

as Subordination Agent,

as agent and trustee for the

JetBlue Airways Pass Through Trust 2004-2G-2,

as Borrower

 

and

 

LANDESBANK BADEN-WÜRTTEMBERG,

as Primary Liquidity Provider

 

Relating to

 

JetBlue Airways Pass Through Trust 2004-2G-2

JetBlue Airways Enhanced Pass Through Certificates, Series 2004-2G-2

 



 

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS

 

Section 1.01

Certain Defined Terms

 

 

 

ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENT

 

Section 2.01

Advances

 

Section 2.02

Making the Advances

 

Section 2.03

Fees

 

Section 2.04

Automatic Reductions and Termination of the Maximum Commitment

 

Section 2.05

Repayments of Interest Advances, the Special Termination Advance or the Final Advance

 

Section 2.06

Repayments of Provider Advances

 

Section 2.07

Payments to the Primary Liquidity Provider Under the Intercreditor Agreement

 

Section 2.08

Book Entries

 

Section 2.09

Payments from Available Funds Only

 

Section 2.10

Extension of Expiry Date; Non-Extension Advance

 

Section 2.11

Right to Further Extend Expiry Date

 

 

 

ARTICLE III

OBLIGATIONS OF THE BORROWER

 

Section 3.01

Increased Costs

 

Section 3.02

Capital Adequacy

 

Section 3.03

Payments Free of Deductions

 

Section 3.04

Payments

 

Section 3.05

Computations

 

Section 3.06

Payment on Non-Business Days

 

Section 3.07

Interest

 

Section 3.08

Replacement of Borrower

 

Section 3.09

Funding Loss Indemnification

 

Section 3.10

Illegality

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT

 

Section 4.01

Conditions Precedent to Effectiveness of Section 2.01

 

Section 4.02

Conditions Precedent to Borrowing

 

 

 

ARTICLE V

COVENANTS

 

Section 5.01

Affirmative Covenants of the Borrower

 

Section 5.02

Negative Covenants of the Borrower

 

 

 

ARTICLE VI

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

Section 6.01

Liquidity Events of Default and Special Termination

 

 

 

ARTICLE VII

MISCELLANEOUS

 

Section 7.01

Amendments, Etc

 

Section 7.02

Notices, Etc

 

 

i



 

Section 7.03

No Waiver; Remedies

 

Section 7.04

Further Assurances

 

Section 7.05

Indemnification; Survival of Certain Provisions

 

Section 7.06

Liability of the Primary Liquidity Provider

 

Section 7.07

Costs, Expenses and Taxes

 

Section 7.08

Binding Effect; Participations

 

Section 7.09

Severability

 

Section 7.10

GOVERNING LAW

 

Section 7.11

Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity

 

Section 7.12

Execution in Counterparts

 

Section 7.13

Entirety

 

Section 7.14

Headings

 

Section 7.15

PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES

 

Section 7.16

Transfer

 

 

Annex I

-

Interest Advance Notice of Borrowing

Annex II

-

Non-Extension Advance Notice of Borrowing

Annex III

-

Downgrade Advance Notice of Borrowing

Annex IV

-

Final Advance Notice of Borrowing

Annex V

-

Notice of Termination

Annex VI

-

Notice of Replacement Subordination Agent

Annex VII

-

Special Termination Advance Notice of Borrowing

Annex VIII

-

Notice of Special Termination

 

ii



 

REVOLVING CREDIT AGREEMENT

 

This REVOLVING CREDIT AGREEMENT (2004-2G-2), dated as of November 15, 2004 (as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), between WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity but solely as Subordination Agent under the Intercreditor Agreement (each as defined below), as agent and trustee for the Class G-2 Trust (as defined below) (the “Borrower”), and LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public law institution with legal capacity (Rechtsfähige Anstalt des Öffentlichen Rechts) (“Primary Liquidity Provider”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Class G-2 Trust Agreement (as defined below), the Class G-2 Trust is issuing the Class G-2 Certificates; and

 

WHEREAS, the Borrower, in order to support the timely payment of a portion of the interest on the Class G-2 Certificates in accordance with their terms, has requested the Primary Liquidity Provider to enter into this Agreement, providing in part for the Borrower to request in specified circumstances that Advances be made hereunder.

 

NOW, THEREFORE, in consideration of the mutual promises contained herein, and of other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.01                            Certain Defined Terms.  (a)  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(i)                                     the terms used herein that are defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular;

 

(ii)                                  all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Agreement;

 

(iii)                               the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and

 

(iv)                              the term “including” means “including without limitation”.

 

Additional Costs” has the meaning specified in Section 3.01.

 



 

Advance” means an Interest Advance, a Final Advance, a Provider Advance, a Special Termination Advance or an Applied Provider Advance, as the case may be.

 

Applicable Liquidity Rate” has the meaning specified in Section 3.07(g).

 

Applicable Margin” means (x) with respect to any Unpaid Advance (other than a Special Termination Advance) or Applied Provider Advance, 1.75% per annum, (y) with respect to any Unapplied Provider Advance, the margin per annum specified in the Fee Letter or (z) with respect to any Special Termination Advance, the margin per annum specified in the Fee Letter.

 

Applied Downgrade Advance” has the meaning specified in Section 2.06(a).

 

Applied Non-Extension Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Provider Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Special Termination Advance” has the meaning assigned to such term in Section 2.05.

 

Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Borrower and the trustee of the Successor Trust.

 

Base Rate” means, for a day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to (a) the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Primary Liquidity Provider from three Federal funds brokers of recognized standing selected by it, plus (b) one-quarter of one percent (0.25%).

 

Base Rate Advance” means an Advance that bears interest at a rate based upon the Base Rate.

 

Borrower” has the meaning specified in the recital of parties to this Agreement.

 

Borrowing” means the making of Advances requested by delivery of a Notice of Borrowing.

 

Business Day” means any day (x) other than a Saturday or Sunday or a day on which commercial banks are authorized or required by law to close in New York, New York or, so long as any Class G-2 Certificate is outstanding, the city and state in which the Class G-2 Trustee, the Borrower or any Indenture Trustee maintains its corporate trust office or receives and disburses funds, and (y) if the applicable Business Day relates to any Advance or amount bearing interest based on LIBOR, on which dealings are carried on in the London interbank market.

 

Consent Period” has the meaning specified in Section 2.10.

 

2



 

Deposit Agreement” means the Deposit Agreement (2004-2G-2) dated as of the date hereof between Wilmington Trust Company, as Escrow Agent and HSH Nordbank AG, New York Branch, as Depositary, pertaining to the Class G-2 Certificates, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch.

 

Deposits” has the meaning assigned to such term in the Deposit Agreement.

 

Downgrade Advance” means an Advance made pursuant to Section 2.02(c).

 

Downgrade Event” means a downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) issued by either Rating Agency below the applicable Threshold Rating unless each Rating Agency shall have confirmed in writing on or prior to the date of such downgrading that such downgrading will not result in the downgrading, withdrawal or suspension of the ratings of the Class G-2 Certificates (without regard to the Policies), in which case such downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) shall not constitute a Downgrade Event (provided, that for Standard & Poor’s the “short-term issuer credit rating” shall refer to (x) on or prior to July 18, 2005, the Primary Liquidity Provider’s short-term issuer credit rating with the benefit of state guarantees and (y) after July 18, 2005 the Primary Liquidity Provider’s short-term issuer credit rating without the benefit of state guarantees unless Standard & Poor’s has notified the Subordination Agent that another rating would be applicable to the Primary Liquidity Provider’s obligations hereunder, in which case, such other applicable rating).

 

Effective Date” has the meaning specified in Section 4.01.  The delivery of the certificate of the Primary Liquidity Provider contemplated by Section 4.01(e) shall be conclusive evidence that the Effective Date has occurred.

 

Excluded Taxes” means (i) any Taxes imposed on, based on, or measured by the overall net income, capital, franchises, or receipts (other than Taxes which are or are in the nature of sales or use Taxes or value added Taxes) of the Primary Liquidity Provider or any of its Lending Offices, (ii) withholding Taxes imposed by the United States except to the extent that such United States withholding Taxes are imposed or increased as a result of any change in applicable law (excluding from change in applicable law for this purpose a change in an applicable treaty or other change in law affecting the applicability of a treaty) after the date hereof, or in the case of a successor Primary Liquidity Provider (including a transferee of an Advance), after the date on which such successor Primary Liquidity Provider obtains its interest, (iii) any withholding Taxes imposed by the United States which are imposed or increased as a result of the Primary Liquidity Provider failing to deliver to the Borrower any certificate or document (which certificate or document in the good faith judgment of the Primary Liquidity Provider it is legally entitled to provide) which is reasonably requested by the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) withholding tax, and (iv) withholding Taxes imposed by the United States on payments to a recipient in any other jurisdiction to which such Lending Office is moved if, under the laws in effect at the time of such move, such laws would require greater withholding of Taxes on

 

3



 

payments to such Primary Liquidity Provider acting from an office in such jurisdiction than would be required on payments to such Primary Liquidity Provider acting from an office in the jurisdiction from which such Lending Office was moved.

 

Expenses” means liabilities, obligations, damages, settlements, penalties, claims, actions, suits, costs, expenses, and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel and costs of investigation), provided that Expenses shall not include Taxes.

 

Expiry Date” means November 14, 2005 initially, or any date to which the Expiry Date is extended pursuant to Section 2.10 or 2.11.

 

Extension Effective Date” has the meaning assigned to such term in Section 2.11.

 

Final Advance” means an Advance made pursuant to Section 2.02(d).

 

Intercreditor Agreement” means the Intercreditor Agreement dated as of the date hereof among the Trustees, the Primary Liquidity Provider, the Primary Liquidity Provider under each Primary Liquidity Facility (other than this Agreement), the Above-Cap Liquidity Provider, the Policy Provider and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Interest Advance” means an Advance made pursuant to Section 2.02(a).

 

Interest Period” means, with respect to any LIBOR Advance, each of the following periods:

 

(1)                                  the period beginning on either (x) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such LIBOR Advance or (y) the date of the withdrawal of funds from the Class G-2 Primary Cash Collateral Account for the purpose of paying interest on the Class G-2 Certificates as contemplated by Section 2.06(a) hereof and, in either case, ending on the next Regular Distribution Date; and

 

(2)                                  each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the next Regular Distribution Date;

 

provided, however, that if (x) the Final Advance shall have been made, or (y) other outstanding Advances shall have been converted into the Final Advance, then the Interest Periods shall be successive periods of one month beginning on the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Final Advance (in the case of clause (x) above) or the Regular Distribution Date following such conversion (in the case of clause (y) above); provided, further that if the last day of any Interest Period shall not be a Business Day, such Interest Period will end on the next succeeding Business Day.

 

Lending Office” means the lending office of the Primary Liquidity Provider, presently located at Stuttgart, Germany, or such other lending office as the Primary Liquidity Provider

 

4



 

from time to time shall notify the Borrower as its lending office hereunder; provided that the Primary Liquidity Provider shall not change its Lending Office to another Lending Office outside of Germany or the United States of America except in accordance with Section 3.01, 3.02 or 3.03 hereof.

 

LIBOR” means, with respect to any Interest Period, the interest rate per annum at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates as indicated on the Reuters Screen LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates offered by the London Reference Banks to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the second LIBOR Business Day prior to the first day of such Interest Period for deposits of a duration equal to such Interest Period (or such other period most nearly corresponding to such period) in an amount substantially equal to the principal amount of the applicable LIBOR Advance as of the first day of such Interest Period.  The Primary Liquidity Provider will, if necessary, request that each of the London Reference Banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded upwards to the nearest 1/100%).  If no such quotation can be obtained, the rate will be Base Rate.

 

LIBOR Advance” means an Advance bearing interest at a rate based upon LIBOR.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Liquidity Event of Default” means the occurrence of either (a) the Acceleration of all of the Equipment Notes (provided that, with respect to any period prior to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal balance in excess of $300,000,000) or (b) a JetBlue Bankruptcy Event.

 

Liquidity Indemnitee” means (i) the Primary Liquidity Provider, (ii) the directors, officers, employees, servants and agents of the Primary Liquidity Provider and its Affiliates, and (iii) the successors and permitted assigns of the persons described in clauses (i) and (ii), inclusive.

 

London Reference Banks” means the principal London offices of Citibank, N.A., Barclays Bank PLC and Standard Chartered Bank or such other bank or banks as may from time to time be agreed to by JetBlue and the Primary Liquidity Provider.

 

London/Stuttgart Business Day” means any day on which commercial banks are open for general business in London, England and Stuttgart, Germany.

 

5



 

Maximum Available Commitment” shall mean, subject to the proviso contained in the third sentence of Section 2.02(a), at any time of determination, (a) the Required Amount at such time less (b) the aggregate amount of each Interest Advance outstanding at such time; provided, however, that following a Provider Advance, a Special Termination Advance or a Final Advance, the Maximum Available Commitment shall be zero.

 

Maximum Commitment” means initially $21,104,173.75, as the same may be reduced from time to time in accordance with Section 2.04(a).

 

Non-Excluded Tax” has the meaning specified in Section 3.03.

 

Non-Extension Advance” means an Advance made pursuant to Section 2.02(b).

 

Notice of Borrowing” has the meaning specified in Section 2.02(f).

 

Notice of Replacement Subordination Agent” has the meaning specified in Section 3.08.

 

Participating Institution” has the meaning specified in Section 7.08(b).

 

Performing Note Deficiency” means any time that less than 65% of the then aggregate outstanding principal amount of all Equipment Notes are Performing Equipment Notes.

 

Primary Liquidity Provider” has the meaning specified in the recital of parties to this Agreement.

 

Prospectus Supplement” means the Prospectus Supplement dated November 9, 2004 relating to the Certificates, as such Prospectus Supplement may be amended or supplemented.

 

Provider Advance” means a Downgrade Advance or a Non-Extension Advance.

 

Regulatory Change” has the meaning specified in Section 3.01.

 

Replenishment Amount” has the meaning assigned to such term in Section 2.06(b).

 

Required Amount” means, for any day, (i) so long as there is no Interest Advance made hereunder remaining unreimbursed on such day, the aggregate amount of interest, calculated at the rate per annum equal to the applicable Capped Interest Rate for the Class G-2 Certificates, that would be payable on the Class G-2 Certificates on each of the six successive Regular Distribution Dates immediately following such day, without regard to expected future distributions of principal on such Class of Certificates or (ii) if there is one or more Interest Advances made hereunder and remaining unreimbursed on such day, the sum of (x) the unreimbursed amount of such Interest Advance(s) and (y) the product of (A) the Undrawn Percentage and (B) the amount determined pursuant to clause (i) as if no Interest Advances were outstanding and unreimbursed on such date.  The “Undrawn Percentage” as of any date is equal to one hundred percent minus the sum of the Individual Drawn Percentages for the Interest Advances that are unreimbursed as of such date.  The “Individual Drawn Percentage” for any unreimbursed Interest Advance as of any day is equal to a fraction, expressed as a percentage,

 

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the numerator of which is the unreimbursed amount of such Interest Advance as of such date and the denominator of which is the Required Amount as of the date of each such Interest Advance calculated as if no Interest Advance were outstanding on the date of such Interest Advance and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date.  Repayments of Interest Advances shall be deemed to have been made in the order in which such Interest Advances were made.  Notwithstanding the above, in the event of any Policy Provider Election, for purposes of the definition of Required Amount, the Pool Balance shall be deemed to be reduced by the amount (if positive) by which (a) the then outstanding principal balance of each Series G-2 Equipment Note in respect of which such Policy Provider Election has been made shall exceed (b) the amount of any Policy Drawings previously paid by the Policy Provider in respect of principal on such Series G-2 Equipment Note.

 

Special Termination Advance” means an Advance made pursuant to Section 2.02(e).

 

Special Termination Notice” means the Notice of Special Termination substantially in the form of Annex VIII to this Agreement.

 

Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-2-S.

 

Termination Date” means the earliest to occur of the following:  (i) the Expiry Date; (ii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that all of the Class G-2 Certificates have been paid in full (or provision has been made for such payment in accordance with the Intercreditor Agreement and the Trust Agreement) or are otherwise no longer entitled to the benefits of this Agreement; (iii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that a Replacement Primary Liquidity Facility has been substituted for this Agreement in full pursuant to Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day following the receipt by the Borrower and JetBlue of a Termination Notice or a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01; and (v) the date on which no Advance is or may (including by reason of reinstatement as herein provided) become available for a Borrowing hereunder.

 

Termination Notice” means the Notice of Termination substantially in the form of Annex V to this Agreement.

 

Unapplied Non-Extension Advance” means the portion of any Non-Extension Advance which is not an Applied Non-Extension Advance.

 

Unapplied Provider Advance” means the portion of any Provider Advance which is not an Applied Provider Advance.

 

Unpaid Advance” has the meaning specified in Section 2.05.

 

(b)                                 Terms Defined in the Intercreditor Agreement.  Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

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ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENT

 

Section 2.01                            Advances.  The Primary Liquidity Provider hereby irrevocably agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless the obligations of the Primary Liquidity Provider shall be earlier terminated in accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to exceed the Maximum Commitment.

 

Section 2.02                            Making the Advances.  (a)  Each “Interest Advance” shall be made in a single Borrowing by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex I, signed by a Responsible Officer of the Borrower, such Interest Advance in an amount not exceeding the Maximum Available Commitment at such time and shall be used solely for the payment when due of interest for the applicable Interest Period on the Class G-2 Certificates at the Stated Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor Agreement.  Each Interest Advance made hereunder shall automatically reduce the Maximum Available Commitment (based on the Required Amount as recalculated as a result of making such Interest Advance) and the amount available to be borrowed hereunder by subsequent Advances by the amount of such Interest Advance (subject to reinstatement as provided in the next sentence).  Subject to the provisions of Section 3.6(g) of the Intercreditor Agreement, upon repayment to the Primary Liquidity Provider in full or in part of the amount of any Interest Advance made pursuant to this Section 2.02(a), together with accrued interest thereon (as provided herein), the Maximum Available Commitment shall be reinstated by an amount equal to the product of (A) the then Required Amount (calculated as if no Interest Advances are outstanding) and (B) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Advances are reimbursed in the order in which they were made) in respect of principal of such Interest Advance and the denominator of which is the Required Amount at the date of such Interest Advance (calculated as if no Interest Advances are then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date) but not to exceed the Maximum Commitment; provided, however, that the Maximum Available Commitment shall not be so reinstated at any time if (x) (i) a Liquidity Event of Default shall have occurred and be continuing and (ii) there is a Performing Note Deficiency or (y) at any time after the making of a Provider Advance, a Final Advance or a Special Termination Advance.

 

(b)                                 A “Non-Extension Advance” shall be made in a single Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of the Intercreditor Agreement (unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower as contemplated by said Section 3.6(d) within the time period specified in such Section) by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex II attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-2 Primary Cash Collateral Account in accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.

 

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(c)                                  A “Downgrade Advance” shall be made in a single Borrowing following the occurrence of a Downgrade Event (as provided for in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower in accordance with said Section 3.6(c), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex III, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-2 Primary Cash Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f) of the Intercreditor Agreement.

 

(d)                                 A “Final Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(a), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex IV, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-2 Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(i) of the Intercreditor Agreement).

 

(e)                                  A “Special Termination Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(b), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex VII, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class G-2 Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(k) of the Intercreditor Agreement).

 

(f)                                    Each Borrowing shall be made on notice in writing (a “Notice of Borrowing”) in substantially the form required by Section 2.02(a), 2.02(b), 2.02(c), 2.02(d) or 2.02(e), as the case may be, given by the Borrower to the Primary Liquidity Provider.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 4:00 p.m. (New York City time) on the date of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available in U.S. dollars and in immediately available funds, the amount of such Borrowing to be paid to the Borrower in accordance with its payment instructions.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing on a day that is not a Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 1:00 p.m. (New York City time) on the first Business Day following the day of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available to the Borrower, in accordance with its payment instructions, in U.S. dollars and in immediately available funds, the amount of such Borrowing.  Payments of proceeds of a Borrowing shall be made by wire transfer of immediately available funds to the Borrower in accordance with such wire transfer instructions as the Borrower shall furnish from time to time to the Primary Liquidity Provider for such purpose.

 

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Each Notice of Borrowing shall be irrevocable and binding on the Borrower.  Each Notice of Borrowing shall be effective upon delivery of a copy thereof to the Primary Liquidity Provider’s New York Branch (with a copy to the Lending Office) at the address specified pursuant to the terms of Section 7.02.

 

(g)                                 Upon the making of any Advance requested pursuant to a Notice of Borrowing in accordance with the Borrower’s payment instructions, the Primary Liquidity Provider shall be fully discharged of its obligation hereunder with respect to such Notice of Borrowing, and the Primary Liquidity Provider shall not thereafter be obligated to make any further Advances hereunder in respect of such Notice of Borrowing to the Borrower or to any other Person.  If the Primary Liquidity Provider makes an Advance requested pursuant to a Notice of Borrowing before 1:00 p.m. (New York City time) on the second Business Day after the date of payment specified in Section 2.02(f), the Primary Liquidity Provider shall have fully discharged its obligations hereunder with respect to such Advance and an event of default shall not have occurred hereunder.  Following the making of any Advance pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e) to fund the Class G-2 Primary Cash Collateral Account, the Primary Liquidity Provider shall have no interest in or rights to the Class G-2 Primary Cash Collateral Account, such Advance or any other amounts from time to time on deposit in the Class G-2 Primary Cash Collateral Account; provided, however, that the foregoing shall not affect or impair the obligations of the Subordination Agent to make the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement and provided further, that the foregoing shall not affect or impair the rights of the Primary Liquidity Provider to provide written instructions with respect to the investment and reinvestment of the amounts in Cash Collateral Accounts to the extent provided in Section 2.2(b) of the Intercreditor Agreement.  By paying to the Borrower proceeds of Advances requested by the Borrower in accordance with the provisions of this Agreement, the Primary Liquidity Provider makes no representation as to, and assumes no responsibility for, the correctness or sufficiency for any purpose of the amount of the Advances so made and requested.

 

Section 2.03                            Fees.  The Borrower agrees to pay to the Primary Liquidity Provider the fees set forth in the Fee Letter applicable to this Agreement.

 

Section 2.04                            Automatic Reductions and Termination of the Maximum Commitment.

 

(a)                                  Automatic Reductions.  Promptly following each date on which the Required Amount is reduced as a result of a reduction in the Pool Balance of the Class G-2 Certificates (including by reason of a Policy Provider Election with respect to one or more Series G-2 Equipment Notes), or otherwise, the Maximum Commitment shall automatically be reduced to an amount equal to such reduced Required Amount (as calculated by the Borrower).  The Borrower shall give notice of any such automatic reduction of the Maximum Commitment to the Primary Liquidity Provider within two Business Days thereof.  The failure by the Borrower to furnish any such notice shall not affect such automatic reduction of the Maximum Commitment.

 

(b)                                 Termination.  Upon the making of any Provider Advance or the  Special Termination Advance or the making of or conversion to a Final Advance hereunder or the occurrence of the Termination Date, the obligation of the Primary Liquidity Provider to make

 

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further Advances hereunder shall automatically and irrevocably terminate, and the Borrower shall not be entitled to request any further Borrowing hereunder.

 

Section 2.05                            Repayments of Interest Advances, the Special Termination Advance or the Final Advance.  Subject to Sections 2.06, 2.07 and 2.09, the Borrower hereby agrees, without notice of an Advance or demand for repayment from the Primary Liquidity Provider (which notice and demand are hereby waived by the Borrower), to pay, or to cause to be paid, to the Primary Liquidity Provider on each date on which the Primary Liquidity Provider shall make an Interest Advance, the Special Termination Advance or the Final Advance, an amount equal to (a) the amount of such Advance (any such Advance, until repaid, is referred to herein as an “Unpaid Advance”), plus (b) interest on the amount of each such Unpaid Advance as provided in Section 3.07; provided, however, that if (i) the Primary Liquidity Provider shall make a Provider Advance at any time after making one or more Interest Advances which shall not have been repaid in accordance with this Section 2.05 or (ii) this Primary Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility at any time when unreimbursed Interest Advances have reduced the Maximum Available Commitment to zero, then such Interest Advances shall cease to constitute Unpaid Advances and shall be deemed to have been changed into an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may be, for all purposes of this Agreement (including, for the purpose of determining when such Interest Advance is required to be repaid to the Primary Liquidity Provider in accordance with Section 2.06 and for the purposes of Section 2.06(b)); provided, further, that amounts in respect of a Special Termination Advance withdrawn from the Class G-2 Primary Cash Collateral Account for the purpose of paying interest on the Class G-2 Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being an “Applied Special Termination Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon; and provided, further, that if, following the making of a Special Termination Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Special Termination Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  The Borrower and the Primary Liquidity Provider agree that the repayment in full of each Interest Advance, Special Termination Advance and Final Advance on the date such Advance is made is intended to be a contemporaneous exchange for new value given to the Borrower by the Primary Liquidity Provider.

 

Section 2.06                            Repayments of Provider Advances.  (a) Amounts advanced hereunder in respect of a Provider Advance shall be deposited in the Class G-2 Primary Cash Collateral Account, invested and withdrawn from the Class G-2 Primary Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor Agreement.  The Borrower agrees to pay to the Primary Liquidity Provider, on each Regular Distribution Date, commencing on the first Regular Distribution Date after the making of a Provider Advance, interest on the principal amount of any such Provider Advance as provided in Section 3.07; provided, however, that amounts in respect of a Provider Advance withdrawn from the Class G-2 Primary Cash Collateral Account for the purpose of paying interest on the Class G-2 Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being (y) in the case of a Downgrade Advance, an “Applied Downgrade Advance” and (z) in the case

 

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of a Non-Extension Advance, an “Applied Non-Extension Advance” and, together with an Applied Downgrade Advance, an “Applied Provider Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable; and provided, further, that if, following the making of a Provider Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Provider Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the Class G-2 Primary Cash Collateral Account on account of a reduction in the Required Amount, the Borrower shall repay to the Primary Liquidity Provider a portion of the Provider Advances in a principal amount equal to the amount of such reduction, plus interest on the principal amount prepaid as provided in Section 3.07.

 

(b)                                 At any time when an Applied Provider Advance (or any portion thereof) is outstanding, upon the deposit in the Class G-2 Primary Cash Collateral Account of any amount pursuant to Section 2.4(a) of the Intercreditor Agreement or clause fourth of Section 3.2 of the Intercreditor Agreement (any such amount being a “Replenishment Amount”) for the purpose of replenishing or increasing the balance thereof up to the amount of the Required Amount at such time, (i) the aggregate outstanding principal amount of all Applied Provider Advances (and of Provider Advances treated as an Interest Advance for purposes of determining the Applicable Liquidity Rate for interest payable thereon) shall be automatically reduced by the amount of such Replenishment Amount and (ii) the aggregate outstanding principal amount of all Unapplied Provider Advances shall be automatically increased by the amount of such Replenishment Amount.

 

(c)                                  Upon the provision of a Replacement Primary Liquidity Facility in replacement of this Agreement in accordance with Section 3.6(e) or 2.7(c) of the Intercreditor Agreement, amounts remaining on deposit in the Class G-2 Primary Cash Collateral Account after giving effect to any Applied Provider Advance on the date of such replacement shall be reimbursed to the Primary Liquidity Provider, but only to the extent such amounts are necessary to repay in full to the Primary Liquidity Provider all amounts owing to it hereunder.

 

Section 2.07                            Payments to the Primary Liquidity Provider Under the Intercreditor Agreement.  In order to provide for payment or repayment to the Primary Liquidity Provider of any amounts hereunder, the Intercreditor Agreement provides that amounts available and referred to in Articles II and III of the Intercreditor Agreement, to the extent payable to the Primary Liquidity Provider pursuant to the terms of the Intercreditor Agreement (including, without limitation, Sections 3.6(f) and 2.7(c) of the Intercreditor Agreement), shall be paid to the Primary Liquidity Provider in accordance with the terms thereof.  Amounts so paid to, and not required to be returned by, the Primary Liquidity Provider shall be applied by the Primary Liquidity Provider to Liquidity Obligations then due and payable in the order of priority required by the applicable provisions of Articles II and III of the Intercreditor Agreement or, if not provided for in the Intercreditor Agreement, then in such manner as the Primary Liquidity Provider shall deem appropriate, and shall discharge in full the corresponding obligations of the Borrower hereunder.

 

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Section 2.08                            Book Entries.  The Primary Liquidity Provider shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower resulting from Advances made from time to time and the amounts of principal and interest payable hereunder and paid from time to time in respect thereof; provided, however, that the failure by the Primary Liquidity Provider to maintain such account or accounts shall not affect the obligations of the Borrower in respect of Advances.

 

Section 2.09                            Payments from Available Funds Only.  All payments to be made by the Borrower under this Agreement shall be made only from amounts that constitute Scheduled Payments or Special Payments or payments under the Fee Letter, Section 7.1 of the Participation Agreements, and Section 6 of the Note Purchase Agreement, and only to the extent that the Borrower shall have sufficient income or proceeds therefrom to enable the Borrower to make payments in accordance with the terms hereof after giving effect to the priority of payments provisions set forth in the Intercreditor Agreement.  The Primary Liquidity Provider agrees that it shall look solely to such amounts to the extent available for distribution to it as provided in the Intercreditor Agreement and this Agreement and that the Borrower, in its individual capacity, is not personally liable to it for any amounts payable or liability under this Agreement except as expressly provided in this Agreement or the Intercreditor Agreement.  Amounts on deposit in the Class G-2 Primary Cash Collateral Account shall be available to the Borrower to make payments under this Agreement only to the extent and for the purposes expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.

 

Section 2.10                            Extension of Expiry Date; Non-Extension Advance.  No earlier than the 60th day and no later than the 40th day prior to the then effective Expiry Date (unless such Expiry Date is on or after the date that is 15 days after the Final Legal Distribution Date for the Class G-2 Certificates), the Borrower shall request that the Primary Liquidity Provider extend the Expiry Date to the earlier of (i) the date that is 15 days after the Final Legal Distribution Date for the Class G-2 Certificates and (ii) the date that is the day immediately preceding the 364th day occurring after the last day of the Consent Period (as hereinafter defined).  Whether or not the Borrower has made such request, the Primary Liquidity Provider shall advise the Borrower and the Policy Provider, no earlier than the 40th day (or, if earlier, the date of the Primary Liquidity Provider’s receipt of such request, if any, from the Borrower) and no later than the 25th day prior to the then effective Expiry Date (such period the “Consent Period”), whether, in its sole discretion, it agrees to so extend the Expiry Date.  If the Primary Liquidity Provider advises the Borrower and the Policy Provider on or before the date on which the Consent Period ends that such Expiry Date shall not be so extended, or fails to irrevocably and unconditionally advise the Borrower and the Policy Provider on or before the date on which the Consent Period ends that such Expiry Date shall be so extended  (and, in each case, if the Primary Liquidity Provider shall not have been replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and after the date on which the Consent Period ends (but prior to the then effective Expiry Date) to request a Non-Extension Advance in accordance with Section 2.2(b) and Section 3.6(d) of the Intercreditor Agreement.

 

Section 2.11                            Right to Further Extend Expiry Date.  Subject to the proviso in the immediately succeeding sentence and at no additional cost or expense of the Borrower or JetBlue, the Primary Liquidity Provider shall have the right at any time and without the consent of the Borrower to extend the then effective Expiry Date to the date that is up to 15 days after the

 

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Final Legal Distribution Date for the Class G-2 Certificates by giving not less than five nor more than ten days’ prior written notice of such extension to the Borrower, the Trustee, each Rating Agency and JetBlue (which notice shall specify the effective date of such extension (the “Extension Effective Date”)).  On the Extension Effective Date, the then effective Expiry Date shall be so extended without any further act; provided, however, that if prior to the Extension Effective Date a Downgrade Event shall have occurred, then the effective Expiry Date shall not be so extended.

 

ARTICLE III

OBLIGATIONS OF THE BORROWER

 

Section 3.01                            Increased Costs.  The Borrower shall pay to the Primary Liquidity Provider from time to time such amounts as may be necessary to compensate the Primary Liquidity Provider for any costs incurred by the Primary Liquidity Provider which are attributable to its making or maintaining any Advances hereunder or its obligation to make any such Advances hereunder, or any reduction in any amount receivable by the Primary Liquidity Provider under this Agreement or the Intercreditor Agreement in respect of any such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any change after the date of this Agreement in U.S. federal, state, or municipal, or any foreign laws or regulations, or the adoption or making after such date of any interpretation, regulation, directive, or requirement applying to a class of banks including the Primary Liquidity Provider whether or not having the force of law, by any court or governmental or monetary authority charged with the interpretation or administration thereof (a “Regulatory Change”), which: (1) changes the basis of taxation of any amounts payable to the Primary Liquidity Provider under this Agreement in respect of any such Advances or such obligation (other than Excluded Taxes or any Non-Excluded Taxes); or (2) imposes or modifies any reserve, special deposit, compulsory loan or similar requirements relating to any extensions of credit or other assets of, or any deposits with other liabilities of, the Primary Liquidity Provider (including any such Advances or such obligation or any deposits referred to in the definition of LIBOR or related definitions).  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.01 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.01 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.01; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.01 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.01 of the effect of any Regulatory Change on its costs

 

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of making or maintaining Advances or its obligation to make any Advances hereunder or on amounts receivable by it in respect of Advances, and of the additional amounts required to compensate the Primary Liquidity Provider in respect of any Additional Costs, shall be prima facie evidence of the amount owed under this Section 3.01.

 

Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.02                            Capital Adequacy.  If (1) the adoption, after the date hereof, of any applicable governmental law, rule or regulation regarding capital adequacy, (2) any change, after the date hereof, in the interpretation or administration of any such law, rule or regulation by any central bank or other governmental authority charged with the interpretation or administration thereof or (3) compliance by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider with any applicable guideline or request from any central bank or other governmental authority (whether or not having the force of law), issued after the date hereof, that constitutes a change in the nature described in clause (2), has the effect of requiring an increase in the amount of capital required to be maintained by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider, and such increase is based upon the Primary Liquidity Provider’s obligations hereunder (including funded obligations) and other similar obligations, the Borrower shall, subject to the provisions of the next paragraph, pay to the Primary Liquidity Provider from time to time such additional amount or amounts as are necessary to compensate the Primary Liquidity Provider for the portion of such increase as shall be reasonably allocable to the Primary Liquidity Provider’s obligations to the Borrower hereunder.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.02 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

From and after the Extension Effective Date, the Primary Liquidity Provider will be entitled to compensation pursuant to this Section 3.02 only to the extent that the Primary Liquidity Provider would have been so entitled if the Extension Effective Date had not occurred.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.02 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.02; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.02 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.02 of the effect of any increase in the amount of capital required to be maintained by the Primary Liquidity Provider and of the amount allocable to the

 

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Primary Liquidity Provider’s obligations to the Borrower hereunder shall be prima facie evidence of the amounts owed under this Section 3.02.

 

Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.03                            Payments Free of Deductions.  (a)  All payments made by the Borrower under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes, excluding Excluded Taxes (such non-excluded taxes being referred to herein, collectively, as “Non-Excluded Taxes”).  If any Non-Excluded Taxes are required to be withheld or deducted from any amounts payable to the Primary Liquidity Provider under this Agreement, the Borrower shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Non-Excluded Taxes (and any additional Non-Excluded Taxes in respect of the payment required under clause (ii) below) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Primary Liquidity Provider an additional amount which (after deduction of all such Non-Excluded Taxes) shall be sufficient to yield to the Primary Liquidity Provider the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment hereunder, the Borrower shall furnish to the Primary Liquidity Provider the original or a certified copy of (or other documentary evidence of) the payment of the Non-Excluded Taxes applicable to such payment.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise materially disadvantageous to the Primary Liquidity Provider.  The Primary Liquidity Provider shall deliver to the Borrower such certificates and documents, including, without limitation, original W-8BEN or W-8ECI forms, or any successor forms, as may be reasonably requested by the Borrower and required by applicable law to establish that payments hereunder are exempt from (or entitled to a reduced rate of) withholding Tax.

 

(b)                                 All payments (including, without limitation, Advances) made by the Primary Liquidity Provider under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes.  If any Taxes are required to be withheld or deducted from any amounts payable to the Borrower under this Agreement, the Primary Liquidity Provider shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Taxes (and any additional Taxes in respect of the additional amounts payable under clause (ii) hereof) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Borrower an additional amount which (after deduction of all such Taxes) shall be sufficient to yield to the Borrower the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment under this Section 3.03(b), the Primary Liquidity Provider shall furnish to the Borrower the

 

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original or a certified copy of (or other documentary evidence of) the payment of the Taxes applicable to such payment.

 

(c)                                  If any exemption from, or reduction in the rate of, any Taxes is reasonably available to the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) tax, the Borrower shall deliver to the Primary Liquidity Provider such form or forms and such other evidence of the eligibility of the Borrower for such exemption or reduction as the Primary Liquidity Provider may reasonably identify to the Borrower as being required as a condition to exemption from, or reduction in the rate of, any Taxes.

 

Section 3.04                            Payments.  The Borrower shall make or cause to be made each payment to the Primary Liquidity Provider under this Agreement so as to cause the same to be received by the Primary Liquidity Provider not later than 1:00 P.M. (New York City time) on the day when due.  The Borrower shall make all such payments in lawful money of the United States of America, to the Primary Liquidity Provider in immediately available funds, by wire transfer to Deutsche Bank Trust Co. Americas, New York, ABA No. 021001033, Swift Code: BKTR US 33, Account Holder: Landesbank Baden-Württemberg, Stuttgart, Account No. 04-095-107, Swift Code: SOLADEST, Reference:  3371 Loan Administration, JetBlue EETC 2004-2, or such other account as the Primary Liquidity Provider shall notify the Borrower.

 

Section 3.05                            Computations.  All computations of interest based on the Base Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the LIBOR shall be made on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.

 

Section 3.06                            Payment on Non-Business Days.  Whenever any payment to be made hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day (and if so made, shall be deemed to have been made when due).

 

Section 3.07                            Interest.  (a)  Subject to Section 2.09, the Borrower shall pay, or shall cause to be paid, without duplication, interest on (i) the unpaid principal amount of each Advance from and including the date of such Advance (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, from and including the date on which the amount thereof was withdrawn from the Class G-2 Primary Cash Collateral Account to pay interest on the Class G-2 Certificates) to but excluding the date such principal amount shall be paid in full (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, the date on which the Class G-2 Primary Cash Collateral Account is fully replenished in respect of such Advance) and (ii) any other amount due hereunder (whether fees, commissions, expenses or other amounts or to the extent permitted by applicable law,  installments of interest on Advances or any such other amount) which is not paid when due (whether at stated maturity, by acceleration or otherwise) from and including the due date thereof to but excluding the date such amount is paid in full, in each such case, at a fluctuating interest rate per annum for each day equal to the Applicable Liquidity Rate (as defined below) for such Advance or such other amount as in effect for such day, but in no event at a rate per annum greater than the maximum rate permitted by applicable law; provided, however, that, if at any

 

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time the otherwise applicable interest rate as set forth in this Section 3.07 shall exceed the maximum rate permitted by applicable law, then any subsequent reduction in such interest rate shall not reduce the rate of interest payable pursuant to this Section 3.07 below the maximum rate permitted by applicable law until the total amount of interest accrued equals the amount of interest that would have accrued if such otherwise applicable interest rate as set forth in this Section 3.07 had at all times been in effect.  Nothing contained in this Section 3.07 shall require the Borrower to pay any amount under this Section 3.07 other than as specified in Section 2.09.

 

(b)                                 Except as provided in Section 3.07(e), each Advance shall be either a Base Rate Advance or a LIBOR Advance as provided in this Section or Section 3.10.  Each such Advance shall be a Base Rate Advance for the period from the date of its borrowing to (but excluding) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Advance.  Thereafter, such Advance shall be a LIBOR Advance.

 

(c)                                  Each LIBOR Advance shall bear interest during each Interest Period at a rate per annum equal to LIBOR for such Interest Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on the last day of such Interest Period and, in the event of the payment of principal of such LIBOR Advance on a day other than such last day, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(d)                                 Each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin, payable in arrears on each Regular Distribution Date and, in the event of the payment of principal of such Base Rate Advance on a day other than a Regular Distribution Date, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(e)                                  Each (i) outstanding Unapplied Non-Extension Advance and (ii) outstanding Unapplied Downgrade Advance with respect to which the Primary Liquidity Provider has elected pursuant to the provision in Section 3.6(e)(i)(C) of the Intercreditor Agreement not to be replaced, from the date of such election, shall bear interest in an amount equal to the Investment Earnings on amounts on deposit in the Class G-2 Primary Cash Collateral Account plus the Applicable Margin, payable in arrears on each Regular Distribution Date.

 

(f)                                    Each amount not paid when due hereunder (whether fees, commissions, expenses or other amounts or, to the extent permitted by applicable law, installments of interest on Advances but excluding Advances) shall bear interest at a rate per annum equal to the Base Rate plus 1.00% per annum.

 

(g)                                 Each change in the Base Rate shall become effective immediately.  The rates of interest specified in this Section 3.07 with respect to any Advance or other amount shall be referred to as the “Applicable Liquidity Rate.”

 

Section 3.08                            Replacement of Borrower.  Subject to Section 5.02, from time to time and subject to the successor Borrower’s meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor Agreement applicable to the Subordination Agent, upon the effective date

 

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and time specified in a written and completed Notice of Replacement Subordination Agent in substantially the form of Annex VI (a “Notice of Replacement Subordination Agent”) delivered to the Primary Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be substituted for as the Borrower for all purposes hereunder.

 

Section 3.09                            Funding Loss Indemnification.  The Borrower shall pay to the Primary Liquidity Provider, upon the request of the Primary Liquidity Provider, such amount or amounts as shall be sufficient (in the reasonable opinion of the Primary Liquidity Provider) to compensate it for any loss, cost, or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the Primary Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of anticipated profits) incurred as a result of:

 

(1)                                  Any repayment of a LIBOR Advance on a date other than the last day of the Interest Period for such Advance; or

 

(2)                                  Any failure by the Borrower to borrow a LIBOR Advance on the date for borrowing specified in the relevant notice under Section 2.02.

 

Section 3.10                            Illegality.  Notwithstanding any other provision in this Agreement, if any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Primary Liquidity Provider (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the Primary Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the Borrower by the Primary Liquidity Provider, the outstanding principal amount of the LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon demand of the Primary Liquidity Provider, if such change or compliance with such request, in the judgment of the Primary Liquidity Provider, requires immediate repayment; or (b) at the expiration of the last Interest Period to expire before the effective date of any such change or request.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid or cure the aforesaid illegality and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

ARTICLE IV

CONDITIONS PRECEDENT

 

Section 4.01                            Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied or waived by the appropriate party or parties:

 

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(a)                                  The Primary Liquidity Provider shall have received on or before the Closing Date each of the following and in the case of each document delivered pursuant to paragraphs (i), (ii) and (iii), in form and substance satisfactory to the Primary Liquidity Provider:

 

(i)                                     This Agreement duly executed on behalf of the Borrower;

 

(ii)                                  The Intercreditor Agreement, Tax Letter and Fee Letter duly executed on behalf of each of the parties thereto (other than the Primary Liquidity Provider);

 

(iii)                               Fully executed copies of each of the Operative Agreements executed and delivered on or before the Closing Date (other than this Agreement, the Intercreditor Agreement, Tax Letter and the Fee Letter);

 

(iv)                              A copy of the Prospectus Supplement and specimen copies of the Class G-2 Certificates;

 

(v)                                 An executed copy of each opinion, document, instrument and certificate delivered on or before the Closing Date pursuant to the Class G-2 Trust Agreement, the Intercreditor Agreement, the Note Purchase Agreement and the other Operative Agreements entered into on or prior to the date hereof (in the case of each such opinion, other than the opinion of counsel for the Underwriters, either addressed to the Primary Liquidity Provider or accompanied by a letter from the counsel rendering such opinion to the effect that the Primary Liquidity Provider is entitled to rely on such opinion as of its date as if it were addressed to the Primary Liquidity Provider);

 

(vi)                              Evidence that there shall have been made and shall be in full force and effect, all filings, recordings and/or registrations, and there shall have been given or taken any notice or other similar action as may be reasonably necessary or, to the extent reasonably requested by the Primary Liquidity Provider, reasonably advisable, in order to establish, perfect, protect and preserve the right, title and interest, remedies, powers, privileges, liens and security interests of, or for the benefit of, the Trustee and the Primary Liquidity Provider created by the Operative Agreements executed and delivered on or before the Closing Date;

 

(vii)                           An agreement from JetBlue, pursuant to which JetBlue agrees to provide copies of quarterly financial statements and audited annual financial statements to the Primary Liquidity Provider provided that so long as JetBlue is subject to the reporting requirements of the Securities Exchange Act of 1934, such information will be considered provided if it is made available on the EDGAR database of the Securities and Exchange Commission;

 

(viii)                        Legal opinions from (a) Morris, James, Hitchens & Williams LLP, special counsel to the Borrower and (b) Vedder, Price, Kaufman & Kammholz, P.C., special counsel to JetBlue, each in form and substance reasonably satisfactory to the Primary Liquidity Provider; and

 

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(ix)                                Such other documents, instruments, opinions and approvals as the Primary Liquidity Provider shall have reasonably requested.

 

(b)                                 The following statements shall be true on and as of the Effective Date:

 

(i)                                     The representations and warranties in the Note Purchase Agreement and each of the Participation Agreements entered into on or prior to the date hereof are true and correct on and as of the Effective Date as though made on and as of the Effective Date;

 

(ii)                                  No event has occurred and is continuing, or would result from the entering into of this Agreement or the making of any Advance, which constitutes a Liquidity Event of Default; and

 

(iii)                               There has been no material adverse change in the financial condition or results of operations of JetBlue and its subsidiaries taken as a whole since December 31, 2003.

 

(c)                                  The Primary Liquidity Provider shall have received payment in full of all fees and other sums required to be paid to or for the account of the Primary Liquidity Provider on or prior to the Effective Date.

 

(d)                                 All conditions precedent to the issuance of the Certificates under the Trust Agreements shall have been satisfied or waived, all conditions precedent to the effectiveness of the other Liquidity Facilities shall have been satisfied or waived, and all conditions precedent to the purchase of the Certificates by the Underwriters under the Underwriting Agreement shall have been satisfied (unless any of such conditions precedent shall have been waived by the Underwriters).

 

(e)                                  The Borrower shall have received a certificate, dated the date hereof, signed by a duly authorized representative of the Primary Liquidity Provider, certifying that all conditions precedent to the effectiveness of Section 2.01 have been satisfied or waived by the Primary Liquidity Provider.

 

Section 4.02                            Conditions Precedent to Borrowing.  The obligation of the Primary Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, on or prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.

 

ARTICLE V

COVENANTS

 

Section 5.01                            Affirmative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider

 

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hereunder, the Borrower shall, unless the Primary Liquidity Provider shall otherwise consent in writing:

 

(a)                                  Performance of Agreements.  Punctually pay or cause to be paid all amounts payable by it under this Agreement and the other Operative Agreements and observe and perform in all material respects the conditions, covenants and requirements applicable to it contained in this Agreement and the other Operative Agreements.

 

(b)                                 Reporting Requirements.  Furnish to the Primary Liquidity Provider with reasonable promptness, such information and data with respect to the transactions contemplated by the Operative Agreements as from time to time may be reasonably requested by the Primary Liquidity Provider; and permit the Primary Liquidity Provider, upon reasonable notice, to inspect the Borrower’s books and records with respect to such transactions and to meet with officers and employees of the Borrower to discuss such transactions.

 

(c)                                  Certain Operative Agreements.  Furnish to the Primary Liquidity Provider with reasonable promptness any Operative Agreement entered into after the date hereof as from time to time may be reasonably requested by the Primary Liquidity Provider.

 

Section 5.02                            Negative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider hereunder, the Borrower shall not appoint or permit or suffer to be appointed any successor Borrower without the written consent of the Primary Liquidity Provider, which consent shall not be unreasonably withheld or delayed.

 

ARTICLE VI

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

Section 6.01                            Liquidity Events of Default and Special Termination.  (a) If (i) any Liquidity Event of Default has occurred and is continuing and (ii) there is a Performing Note Deficiency, the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Termination Notice, the effect of which shall be to cause (A) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Termination Notice is received by the Borrower and JetBlue, (B) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Final Advance in accordance with Section 2.02(d) and Section 3.6(i) of the Intercreditor Agreement, (C) all other outstanding Advances to be automatically converted into Final Advances for purposes of determining the Applicable Liquidity Rate for interest payable thereon, and (D) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

(b)                                 If the aggregate Pool Balance of the Class G-1 Certificates and Class G-2 Certificates is greater than the aggregate outstanding principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes (other than any Series G-1 Equipment Notes

 

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or Series G-2 Equipment Notes previously sold or with respect to which the collateral securing such Series G-1 Equipment Notes or Series G-2 Equipment Notes has been disposed of) at any time during the 18-month period prior to November 15, 2016 the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Special Termination Notice, the effect of which shall be to cause (i) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Special Termination Notice is received by the Borrower and JetBlue, (ii) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Special Termination Advance in accordance with Section 2.02(e) and Section 3.6(k) of the Intercreditor Agreement, and (iii) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

ARTICLE VII

MISCELLANEOUS

 

Section 7.01                            Amendments, Etc.  No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Primary Liquidity Provider, and, in the case of an amendment, the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

Section 7.02                            Notices, Etc.  Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be made in writing (including sent by telecopier) and to the following address:

 

Borrower:                                            Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE  19890-0001

Attention:  Corporate Trust Administration

Telephone: 302-651-1000

Telecopy: 302-651-8882

 

Liquidity

Provider:                                                Landesbank Baden-Württemberg

Am Hauptbahnhof 2
D-70173 Stuttgart
Germany
Attention: Structured Finance
Telephone: +49-711-124-9757
Telecopy: +49-711-124-9747

 

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with a copy of any Notice of Borrowing to:

 

Landesbank Baden-Württemberg

280 Park Avenue, West Building, 31st Floor
New York, New York 10017
Attention: Claudia Rothe, Vice President

Bette Smolen, Assistant Vice President
Vincent Chu

Telephone: 212-584-1700
Telecopy: 212-584-1729

 

or, as to each of the foregoing, at such other address as shall be designated by such Person in a Written Notice to the others.  All such notices and communications shall be effective (i) if given by telecopier, when transmitted to the telecopier number specified above with receipt confirmed, and received in legible form (ii) if given by mail, five Business Days after being deposited in the mails addressed as specified above, and (iii) if given by other means, when delivered at the address specified above, except that written notices to the Primary Liquidity Provider pursuant to the provisions of Articles II and III shall not be effective until received by the Primary Liquidity Provider, subject to the last sentence of Section 2.02(f).  A copy of all notices delivered hereunder to either party shall in addition be delivered to each of the parties to the Participation Agreements at their respective addresses set forth therein.

 

Section 7.03                            No Waiver; Remedies.  No failure on the part of the Primary Liquidity Provider to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

Section 7.04                            Further Assurances.  The Borrower agrees to do such further acts and things and to execute and deliver to the Primary Liquidity Provider such additional assignments, agreements, powers and instruments as the Primary Liquidity Provider may reasonably require or deem advisable to carry into effect the purposes of this Agreement and the other Operative Agreements or to better assure and confirm unto the Primary Liquidity Provider its rights, powers and remedies hereunder and under the other Operative Agreements.

 

Section 7.05                            Indemnification; Survival of Certain Provisions.  The Primary Liquidity Provider shall be indemnified hereunder to the extent and in the manner described in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements.  In addition, the Borrower agrees to indemnify, protect, defend and hold harmless each Liquidity Indemnitee from, against and in respect of, and shall pay on demand, all Expenses of any kind or nature whatsoever (other than any Expenses of the nature described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether indemnified against pursuant to said Sections or in such Fee Letter)) that may be imposed on, incurred by or asserted against any  Liquidity Indemnitee, in any way relating to, resulting from, or arising out of or in connection with any action, suit or proceeding by any third party against such Liquidity Indemnitee and relating to this Agreement, the Intercreditor Agreement, the Fee Letter, the Tax Letter or any Participation Agreement; provided, however, that the Borrower shall not be required to indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross negligence or willful

 

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misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense or (iii) attributable to the failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in this Agreement, the Intercreditor Agreement, the Fee Letter or any other Operative Agreement to which it is a party.  The indemnities contained in this Section 7.05, in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 shall survive the termination of this Agreement.

 

Section 7.06                            Liability of the Primary Liquidity Provider.  (a)  Neither the Primary Liquidity Provider nor any of its officers, directors, employees or Affiliates shall be liable or responsible for: (i) the use which may be made of this Agreement or the Advances or any acts or omissions of the Borrower or any beneficiary or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Primary Liquidity Provider against delivery of a Notice of Borrowing and other documents which do not comply with the terms hereof; provided, however, that the Borrower shall have a claim against the Primary Liquidity Provider, and the Primary Liquidity Provider shall be liable to the Borrower, to the extent of any damages (other than punitive damages (the right to receive punitive damages being hereby waived)) suffered by the Borrower which were the result of (A) the Primary Liquidity Provider’s willful misconduct or negligence in determining whether documents presented hereunder comply with the terms hereof, or (B) any breach by the Primary Liquidity Provider of any of the terms of this Agreement, including, but not limited to, the Primary Liquidity Provider’s failure to make lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing complying with the terms and conditions hereof.

 

(b)                                 Neither the Primary Liquidity Provider nor any of its officers, employees, directors or Affiliates shall be liable or responsible in any respect for (i) any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with this Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or omission which may be taken by it in good faith, absent willful misconduct or negligence (in which event the extent of the Primary Liquidity Provider’s potential liability to the Borrower shall be limited as set forth in the preceding paragraph), in connection with this Agreement or any Notice of Borrowing.

 

Section 7.07                            Costs, Expenses and Taxes.  The Borrower agrees to pay, or cause to be paid (A) subject to the terms of the Fee Letter on the Effective Date and on such later date or dates on which the Primary Liquidity Provider shall make demand, all reasonable out-of-pocket costs and expenses of the Primary Liquidity Provider in connection with the preparation, negotiation, execution, delivery, filing and recording of this Agreement, any other Operative Agreement and any other documents which may be delivered in connection with this Agreement, including, without limitation, the reasonable fees and expenses of outside counsel for the Primary Liquidity Provider and (B) on demand, all reasonable costs and expenses of the Primary Liquidity Provider (including reasonable counsel fees and expenses) in connection with (i) the enforcement of this Agreement or any other Operative Agreement, (ii) the modification or amendment of, or supplement to, this Agreement or any other Operative Agreement or such

 

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other documents which may be delivered in connection herewith or therewith (whether or not the same shall become effective) or (iii) any action or proceeding relating to any order, injunction, or other process or decree restraining or seeking to restrain the Primary Liquidity Provider from paying any amount under this Agreement, the Intercreditor Agreement or any other Operative Agreement or otherwise affecting the application of funds in the Class G-2 Primary Cash Collateral Account.  In addition, the Borrower shall pay any and all recording, stamp and other similar taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, any other Operative Agreement and such other documents in connection with this Agreement, and agrees to hold the Primary Liquidity Provider harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes or fees.

 

Section 7.08                            Binding Effect; Participations.  (a)  This Agreement shall be binding upon and inure to the benefit of the Borrower and the Primary Liquidity Provider and their respective successors and assigns, except that neither the Primary Liquidity Provider (except as otherwise provided in this Section 7.08) nor the Borrower (except as contemplated by Section 3.08) shall have the right to assign its rights or obligations hereunder or any interest herein without the prior written consent of the other party, subject to the requirements of Section 7.08(b).  The Primary Liquidity Provider may grant participations herein or in any of its rights hereunder and under the other Operative Agreements to such Persons (other than JetBlue or any of its Affiliates) as the Primary Liquidity Provider may in its sole discretion select, subject to the requirements of Section 7.08(b).  No such participation by the Primary Liquidity Provider, however, shall relieve the Primary Liquidity Provider of its obligations hereunder.  In connection with any participation or any proposed participation, the Primary Liquidity Provider may disclose to the participant or the proposed participant any information that the Borrower is required to deliver or to disclose to the Primary Liquidity Provider pursuant to this Agreement.  The Borrower acknowledges and agrees that the Primary Liquidity Provider’s source of funds may derive in part from its participants.  Accordingly, references in this Agreement and the other Operative Agreements to determinations, reserve and capital adequacy requirements, increased costs, reduced receipts and the like as they pertain to the Primary Liquidity Provider shall be deemed also to include those of each of its participants that are banks (subject, in each case, to the maximum amount that would have been incurred by or attributable to the Primary Liquidity Provider directly if the Primary Liquidity Provider, rather than the participant, had held the interest participated other than as a result of a change in law following the date of any participation).

 

(b)                                 If, pursuant to Section 7.08(a) above, the Primary Liquidity Provider sells any participation in this Agreement to any bank or other entity (each, a “Participating Institution”), then, concurrently with the effectiveness of such participation, the Participating Institution shall (i) represent to the Primary Liquidity Provider (for the benefit of the Primary Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes shall be required to be withheld by the Borrower or the Primary Liquidity Provider with respect to any payments to be made to such Participating Institution in respect of this Agreement, (ii) furnish to the Primary Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, certificate or document prescribed by the

 

26



 

Internal Revenue Service certifying, in each case, such Participating Institution’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Primary Liquidity Provider and the Borrower) to provide the Primary Liquidity Provider and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8BEN or Form W-8ECI that such Participating Institution is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement.  Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) from the Participating Institution indicating that payments hereunder are not subject to United States federal withholding tax, the Borrower shall withhold taxes as required by law from such payments at the applicable statutory rate without any obligation to make additional payments under Section 3.03.

 

(c)                                  Notwithstanding the other provisions of this Section 7.08, the Primary Liquidity Provider may assign and pledge all or any portion of the Advances owing to it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided that any payment in respect of such assigned Advances made by the Borrower to the Primary Liquidity Provider in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect of such assigned Advance to the extent of such payment.  No such assignment shall release the Primary Liquidity Provider from its obligations hereunder.

 

Section 7.09                            Severability.  Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.

 

Section 7.10                            GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Section 7.11                            Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.

 

(a)                                  Each of the parties hereto hereby irrevocably and unconditionally:

 

(i)                                     submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in respect hereof or thereof, to the non-exclusive general jurisdiction of the courts of the State of New York sitting in the City of New York, the

 

27



 

courts of the United States of America for the Southern District of New York, and the appellate courts from any thereof;

 

(ii)                                  consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(iii)                               agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to each party hereto at its address set forth in Section 7.02, or at such other address of which the Primary Liquidity Provider shall have been notified pursuant thereto; and

 

(iv)                              agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

 

(b)                                 THE BORROWER AND THE PRIMARY LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law and statutory claims.  The Borrower and the Primary Liquidity Provider each warrant and represent that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with such legal counsel.  THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

 

(c)                                  The Primary Liquidity Provider hereby waives any immunity it may have from the jurisdiction of the courts of the United States or of any State and waives any immunity any of its properties located in the United States may have from attachment or execution upon a judgment entered by any such court under the United States Foreign Sovereign Immunities Act of 1976 or any similar successor legislation.

 

Section 7.12                            Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.

 

Section 7.13                            Entirety.  This Agreement and the other Operative Agreements constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements of such parties.

 

28



 

Section 7.14                            Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

Section 7.15                            PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE PRIMARY LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

 

Section 7.16                            Transfer.  The Primary Liquidity Provider hereby acknowledges and consents to the Transfer contemplated by the Assignment and Assumption Agreement.

 

29



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first set forth above.

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent and Trustee, as Borrower

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

 

Name: W. Chris Sponenberg

 

 

Title: Vice President

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,

 

as Primary Liquidity Provider

 

 

 

By:

 /s/ Dr. Hans-Matthias Neugebauer

 

 

 

Name: Dr. Hans-Matthias Neugebauer

 

 

Title: SVP

 

 

 

By:

 /s/ Jeannine Eder

 

 

 

Name: Jeannine Eder

 

 

Title: VP

 

30



 

ANNEX I TO

REVOLVING CREDIT AGREEMENT

 

INTEREST ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of an Interest Advance by the Primary Liquidity Provider to be used, subject to clause(3)(v) below, for the payment of interest on the Class G-2 Certificates which was payable on                                (the “Distribution Date”) in accordance with the terms and provisions of the Class G-2 Trust Agreement and the Class G-2 Certificates, which Advance is requested to be made on                               .  The Interest Advance should be transferred to account                     .

 

(3)           The amount of the Interest Advance requested hereby (i) is $                    , to be applied in respect of the payment of interest which was due and payable on the Class G-2 Certificates on such Distribution Date, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-2 Certificates, the Class G-2 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), (iv) does not exceed the Maximum Available Commitment on the date hereof, (v) does not include any amount of interest which was due and payable on the Class G-2 Certificates on such Distribution Date but which remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date, and (vi) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall apply the same in accordance with the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

1



 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the making of the Interest Advance as requested by this Notice of Borrowing shall automatically reduce, subject to reinstatement in accordance with the terms of the Liquidity Agreement, the Maximum Available Commitment by an amount equal to the amount of the Interest Advance requested to be made hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing and such reduction shall automatically result in corresponding reductions in the amounts available to be borrowed pursuant to a subsequent Advance.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the          day of                           ,            .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO

INTEREST ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with Interest Advance Notice of Borrowing]

 

4



 

ANNEX II TO

REVOLVING CREDIT AGREEMENT

 

NON-EXTENSION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Non-Extension Advance by the Primary Liquidity Provider to be used for the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, which Advance is requested to be made on                      ,        .  The Non-Extension Advance should be transferred to                        .

 

(3)           The amount of the Non-Extension Advance requested hereby (i) is $                              .       , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of the principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-2 Certificates, the Class G-2 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower will deposit such amount in the Class G-2 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Non-Extension Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

1



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the           day of                     ,           .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

2



 

SCHEDULE I TO NON-EXTENSION ADVANCE

 

NOTICE OF BORROWING

[Insert copy of computations in accordance with

Non-Extension Advance Notice of Borrowing]

 

3



 

ANNEX III TO

REVOLVING CREDIT AGREEMENT

 

DOWNGRADE ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Downgrade Advance by the Primary Liquidity Provider to be used for the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement by reason of the downgrading of the relevant rating of the Primary Liquidity Provider issued by either Rating Agency below the Threshold Rating, which Advance is requested to be made on                        .  The Downgrade Advance should be transferred to                  .

 

(3)           The amount of the Downgrade Advance requested hereby (i) is $               , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates or interest on the Class G-1 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-2 Certificates, the Class G-2 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-2 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Downgrade Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary

 

1



 

Liquidity Provider of the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the             day of                    ,              .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO

DOWNGRADE ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]

 

4



 

ANNEX IV TO

REVOLVING CREDIT AGREEMENT

 

FINAL ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Final Advance by the Primary Liquidity Provider to be used for the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider with respect to the Liquidity Agreement, which Advance is requested to be made on                           .

 

(3)           The amount of the Final Advance requested hereby (i) is $                          , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-2 Certificates, the Class G-2 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-2 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

(5)           The Borrower hereby requests that the Advance requested hereby be a Base Rate Advance and that such Base Rate Advance be converted into a LIBOR Advance on the third London/Stuttgart Business Day following your receipt of this notice.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Final Advance as requested by this Notice of Borrowing shall automatically and

 

1



 

irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Final Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the           day of                    ,            .

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with

Final Advance Notice of Borrowing]

 

4



 

ANNEX V TO

REVOLVING CREDIT AGREEMENT

 

NOTICE OF TERMINATION

 

[Date]

 

Wilmington Trust Company

Rodney Square North

1100 North Market Square

Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-2 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(a) of the Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default and the existence of a Performing Note Deficiency (each as defined therein), we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF TERMINATION” PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,
as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

cc:                                 Wilmington Trust Company, as Trustee

 

2



 

ANNEX VI TO

REVOLVING CREDIT AGREEMENT

 

NOTICE OF REPLACEMENT SUBORDINATION AGENT

 

[Date]

 

Attention:

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-2 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

For value received, the undersigned hereby irrevocably transfers to:

 

 

 

 

 

 

[Name of Transferee]

 

 

 

 

 

 

 

 

[Address of Transferee]

 

 

all rights and obligations of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement referred to above.  The transferee has succeeded the undersigned as Borrower and Subordination Agent under the Intercreditor Agreement referred to in the first paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of the Intercreditor Agreement.

 

By this transfer, all rights of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement are transferred to the transferee and the transferee shall hereafter have the sole rights and obligations as Borrower and Subordination Agent thereunder.  The undersigned shall pay any costs and expenses of such transfer, including, but not limited to, transfer taxes or governmental charges.

 

We ask that this transfer be effective as of                     ,            .

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

1



 

ANNEX VII TO

REVOLVING CREDIT AGREEMENT

 

SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Primary Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)           The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)           The Borrower is delivering this Notice of Borrowing for the making of the Special Termination Advance by the Primary Liquidity Provider to be used for the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider with respect to the Primary Liquidity Agreement, which Advance is requested to be made on                        .

 

(3)           The amount of the Special Termination Advance requested hereby (i) is $                       , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class G-2 Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class C Certificates, (iii) was computed in accordance with the provisions of the Class G-2 Certificates, the Class G-2 Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)           Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class G-2 Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(k) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Primary Liquidity Agreement, (A) the making of the Special Termination Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Primary Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Special Termination Advance requested by this Notice

 

1



 

of Borrowing, the Borrower shall not be entitled to request any further Advances under the Primary Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the            day of                      ,           .

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent , as Borrower

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with

Special Termination Advance Notice of Borrowing]

 

4



 

ANNEX VIII TO

REVOLVING CREDIT AGREEMENT

 

NOTICE OF SPECIAL TERMINATION

 

[Date]

 

Wilmington Trust Company

Rodney Square North

1100 North Market Square

Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-2 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Primary Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(b) of the Primary Liquidity Agreement, by reason of [the aggregate Pool Balance of the Class G-1 Certificates and Class G-2 Certificates exceeding the aggregate outstanding principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes (other than any Series G-1 Equipment Notes or Series G-2 Equipment Notes previously sold or with respect to which the collateral securing such Series G-1 Equipment Notes or Series G-2 Equipment Notes has been disposed of) during the 18-month period prior to November 15, 2016, we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Primary Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Special Termination Advance under the Primary Liquidity Agreement pursuant to Section 3.6(k) of the Intercreditor Agreement (as defined in the Primary Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF SPECIAL TERMINATION” PROVIDED FOR UNDER THE PRIMARY LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE PRIMARY LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,

as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

cc:                                 Wilmington Trust Company, as Trustee

 

2


EX-4.7 9 a04-11378_4ex4d7.htm EX-4.7

Exhibit 4.7

 

EXECUTION COPY

 

 

REVOLVING CREDIT AGREEMENT

(2004-2C)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY,

as Subordination Agent,

as agent and trustee for the

JetBlue Airways Pass Through Trust 2004-2C,

as Borrower

 

and

 

LANDESBANK BADEN-WÜRTTEMBERG,

as Primary Liquidity Provider

 

Relating to

 

JetBlue Airways Pass Through Trust 2004-2C
JetBlue Airways Enhanced Pass Through Certificates, Series 2004-2C

 



 

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS

 

Section 1.01

Certain Defined Terms

 

 

 

 

ARTICLE II

AMOUNT AND TERMS OF THE COMMITMENT

 

Section 2.01

Advances

 

Section 2.02

Making the Advances

 

Section 2.03

Fees

 

Section 2.04

Automatic Reductions and Termination of the Maximum Commitment

 

Section 2.05

Repayments of Interest Advances, the Special Termination Advance or the Final Advance

 

Section 2.06

Repayments of Provider Advances

 

Section 2.07

Payments to the Primary Liquidity Provider Under the Intercreditor Agreement

 

Section 2.08

Book Entries

 

Section 2.09

Payments from Available Funds Only

 

Section 2.10

Extension of Expiry Date; Non-Extension Advance

 

Section 2.11

Right to Further Extend Expiry Date

 

 

 

 

ARTICLE III

OBLIGATIONS OF THE BORROWER

 

Section 3.01

Increased Costs

 

Section 3.02

Capital Adequacy

 

Section 3.03

Payments Free of Deductions

 

Section 3.04

Payments

 

Section 3.05

Computations

 

Section 3.06

Payment on Non-Business Days

 

Section 3.07

Interest

 

Section 3.08

Replacement of Borrower

 

Section 3.09

Funding Loss Indemnification

 

Section 3.10

Illegality

 

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT

 

Section 4.01

Conditions Precedent to Effectiveness of Section 2.01

 

Section 4.02

Conditions Precedent to Borrowing

 

 

 

 

ARTICLE V

COVENANTS

 

Section 5.01

Affirmative Covenants of the Borrower

 

Section 5.02

Negative Covenants of the Borrower

 

 

 

 

ARTICLE VI

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

Section 6.01

Liquidity Events of Default and Special Termination

 

 

 

 

ARTICLE VII

MISCELLANEOUS

 

Section 7.01

Amendments, Etc

 

Section 7.02

Notices, Etc

 

Section 7.03

No Waiver; Remedies

 

 

i



 

Section 7.04

Further Assurances

 

Section 7.05

Indemnification; Survival of Certain Provisions

 

Section 7.06

Liability of the Primary Liquidity Provider

 

Section 7.07

Costs, Expenses and Taxes

 

Section 7.08

Binding Effect; Participations

 

Section 7.09

Severability

 

Section 7.10

GOVERNING LAW

 

Section 7.11

Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity

 

Section 7.12

Execution in Counterparts

 

Section 7.13

Entirety

 

Section 7.14

Headings

 

Section 7.15

PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES

 

Section 7.16

Transfer

 

 

Annex I

-

Interest Advance Notice of Borrowing

 

Annex II

-

Non-Extension Advance Notice of Borrowing

 

Annex III

-

Downgrade Advance Notice of Borrowing

 

Annex IV

-

Final Advance Notice of Borrowing

 

Annex V

-

Notice of Termination

 

Annex VI

-

Notice of Replacement Subordination Agent

 

Annex VII

-

Special Termination Advance Notice of Borrowing

 

Annex VIII

-

Notice of Special Termination

 

 

ii



 

REVOLVING CREDIT AGREEMENT

 

This REVOLVING CREDIT AGREEMENT (2004-2C), dated as of November 15, 2004 (as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), between WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity but solely as Subordination Agent under the Intercreditor Agreement (each as defined below), as agent and trustee for the Class C Trust (as defined below) (the “Borrower”), and LANDESBANK BADEN-WÜRTTEMBERG, a bank established in Germany as a public law institution with legal capacity (Rechtsfähige Anstalt des Öffentlichen Rechts) (“Primary Liquidity Provider”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Class C Trust Agreement (as defined below), the Class C Trust is issuing the Class C Certificates; and

 

WHEREAS, the Borrower, in order to support the timely payment of a portion of the interest on the Class C Certificates in accordance with their terms, has requested the Primary Liquidity Provider to enter into this Agreement, providing in part for the Borrower to request in specified circumstances that Advances be made hereunder.

 

NOW, THEREFORE, in consideration of the mutual promises contained herein, and of other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01                            Certain Defined Terms.  (a)  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

 

(i)                                     the terms used herein that are defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular;

 

(ii)                                  all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Agreement;

 

(iii)                               the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and

 

(iv)                              the term “including” means “including without limitation”.

 

Additional Costs” has the meaning specified in Section 3.01.

 



 

Advance” means an Interest Advance, a Final Advance, a Provider Advance, a Special Termination Advance or an Applied Provider Advance, as the case may be.

 

Applicable Liquidity Rate” has the meaning specified in Section 3.07(g).

 

Applicable Margin” means (x) with respect to any Unpaid Advance (other than a Special Termination Advance) or Applied Provider Advance, 1.75% per annum, (y) with respect to any Unapplied Provider Advance, the margin per annum specified in the Fee Letter or (z) with respect to any Special Termination Advance, the margin per annum specified in the Fee Letter.

 

Applied Downgrade Advance” has the meaning specified in Section 2.06(a).

 

Applied Non-Extension Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Provider Advance” has the meaning assigned to such term in Section 2.06(a).

 

Applied Special Termination Advance” has the meaning assigned to such term in Section 2.05.

 

Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Borrower and the trustee of the Successor Trust.

 

Base Rate” means, for a day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to (a) the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Primary Liquidity Provider from three Federal funds brokers of recognized standing selected by it, plus (b) one-quarter of one percent (0.25%).

 

Base Rate Advance” means an Advance that bears interest at a rate based upon the Base Rate.

 

Borrower” has the meaning specified in the recital of parties to this Agreement.

 

Borrowing” means the making of Advances requested by delivery of a Notice of Borrowing.

 

Business Day” means any day (x) other than a Saturday or Sunday or a day on which commercial banks are authorized or required by law to close in New York, New York or, so long as any Class C Certificate is outstanding, the city and state in which the Class C Trustee, the Borrower or any Indenture Trustee maintains its corporate trust office or receives and disburses funds, and (y) if the applicable Business Day relates to any Advance or amount bearing interest based on LIBOR, on which dealings are carried on in the London interbank market.

 

Consent Period” has the meaning specified in Section 2.10.

 

2



 

Deposit Agreement” means the Deposit Agreement (2004-2C) dated as of the date hereof between Wilmington Trust Company, as Escrow Agent and HSH Nordbank AG, New York Branch, as Depositary, pertaining to the Class C Certificates, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch.

 

Deposits” has the meaning assigned to such term in the Deposit Agreement.

 

Downgrade Advance” means an Advance made pursuant to Section 2.02(c).

 

Downgrade Event” means a downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) issued by either Rating Agency below the applicable Threshold Rating unless each Rating Agency shall have confirmed in writing on or prior to the date of such downgrading that such downgrading will not result in the downgrading, withdrawal or suspension of the ratings of the Class C Certificates (without regard to the Policies), in which case such downgrading of the Primary Liquidity Provider’s short-term unsecured debt rating or short-term issuer credit rating (as applicable) shall not constitute a Downgrade Event (provided, that for Standard & Poor’s the “short-term issuer credit rating” shall refer to (x) on or prior to July 18, 2005, the Primary Liquidity Provider’s short-term issuer credit rating with the benefit of state guarantees and (y) after July 18, 2005 the Primary Liquidity Provider’s short-term issuer credit rating without the benefit of state guarantees unless Standard & Poor’s has notified the Subordination Agent that another rating would be applicable to the Primary Liquidity Provider’s obligations hereunder, in which case, such other applicable rating).

 

Effective Date” has the meaning specified in Section 4.01.  The delivery of the certificate of the Primary Liquidity Provider contemplated by Section 4.01(e) shall be conclusive evidence that the Effective Date has occurred.

 

Excluded Taxes” means (i) any Taxes imposed on, based on, or measured by the overall net income, capital, franchises, or receipts (other than Taxes which are or are in the nature of sales or use Taxes or value added Taxes) of the Primary Liquidity Provider or any of its Lending Offices, (ii) withholding Taxes imposed by the United States except to the extent that such United States withholding Taxes are imposed or increased as a result of any change in applicable law (excluding from change in applicable law for this purpose a change in an applicable treaty or other change in law affecting the applicability of a treaty) after the date hereof, or in the case of a successor Primary Liquidity Provider (including a transferee of an Advance), after the date on which such successor Primary Liquidity Provider obtains its interest, (iii) any withholding Taxes imposed by the United States which are imposed or increased as a result of the Primary Liquidity Provider failing to deliver to the Borrower any certificate or document (which certificate or document in the good faith judgment of the Primary Liquidity Provider it is legally entitled to provide) which is reasonably requested by the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) withholding tax, and (iv) withholding Taxes imposed by the United States on payments to a recipient in any other jurisdiction to which such Lending Office is moved if, under the laws in effect at the time of such move, such laws would require greater withholding of Taxes on

 

3



 

payments to such Primary Liquidity Provider acting from an office in such jurisdiction than would be required on payments to such Primary Liquidity Provider acting from an office in the jurisdiction from which such Lending Office was moved.

 

Expenses” means liabilities, obligations, damages, settlements, penalties, claims, actions, suits, costs, expenses, and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel and costs of investigation), provided that Expenses shall not include Taxes.

 

Expiry Date” means November 14, 2005 initially, or any date to which the Expiry Date is extended pursuant to Section 2.10 or 2.11.

 

Extension Effective Date” has the meaning assigned to such term in Section 2.11.

 

Final Advance” means an Advance made pursuant to Section 2.02(d).

 

Intercreditor Agreement” means the Intercreditor Agreement dated as of the date hereof among the Trustees, the Primary Liquidity Provider, the Primary Liquidity Provider under each Primary Liquidity Facility (other than this Agreement), the Above-Cap Liquidity Provider, the Policy Provider and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Interest Advance” means an Advance made pursuant to Section 2.02(a).

 

Interest Period” means, with respect to any LIBOR Advance, each of the following periods:

 

(1)                                  the period beginning on either (x) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such LIBOR Advance or (y) the date of the withdrawal of funds from the Class C Primary Cash Collateral Account for the purpose of paying interest on the Class C Certificates as contemplated by Section 2.06(a) hereof and, in either case, ending on the next Regular Distribution Date; and

 

(2)                                  each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the next Regular Distribution Date;

 

provided, however, that if (x) the Final Advance shall have been made, or (y) other outstanding Advances shall have been converted into the Final Advance, then the Interest Periods shall be successive periods of one month beginning on the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Final Advance (in the case of clause (x) above) or the Regular Distribution Date following such conversion (in the case of clause (y) above); provided, further that if the last day of any Interest Period shall not be a Business Day, such Interest Period will end on the next succeeding Business Day.

 

Lending Office” means the lending office of the Primary Liquidity Provider, presently located at Stuttgart, Germany, or such other lending office as the Primary Liquidity Provider

 

4



 

from time to time shall notify the Borrower as its lending office hereunder; provided that the Primary Liquidity Provider shall not change its Lending Office to another Lending Office outside of Germany or the United States of America except in accordance with Section 3.01, 3.02 or 3.03 hereof.

 

LIBOR” means, with respect to any Interest Period, the interest rate per annum at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates as indicated on the Reuters Screen LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100%), as determined by the Primary Liquidity Provider, of such rates offered by the London Reference Banks to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the second LIBOR Business Day prior to the first day of such Interest Period for deposits of a duration equal to such Interest Period (or such other period most nearly corresponding to such period) in an amount substantially equal to the principal amount of the applicable LIBOR Advance as of the first day of such Interest Period.  The Primary Liquidity Provider will, if necessary, request that each of the London Reference Banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded upwards to the nearest 1/100%).  If no such quotation can be obtained, the rate will be Base Rate.

 

LIBOR Advance” means an Advance bearing interest at a rate based upon LIBOR.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Liquidity Event of Default” means the occurrence of either (a) the Acceleration of all of the Equipment Notes (provided that, with respect to any period prior to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal balance in excess of $300,000,000) or (b) a JetBlue Bankruptcy Event.

 

Liquidity Indemnitee” means (i) the Primary Liquidity Provider, (ii) the directors, officers, employees, servants and agents of the Primary Liquidity Provider and its Affiliates, and (iii) the successors and permitted assigns of the persons described in clauses (i) and (ii), inclusive.

 

London Reference Banks” means the principal London offices of Citibank, N.A., Barclays Bank PLC and Standard Chartered Bank or such other bank or banks as may from time to time be agreed to by JetBlue and the Primary Liquidity Provider.

 

London/Stuttgart Business Day” means any day on which commercial banks are open for general business in London, England and Stuttgart, Germany.

 

5



 

Maximum Available Commitment” shall mean, subject to the proviso contained in the third sentence of Section 2.02(a), at any time of determination, (a) the Required Amount at such time less (b) the aggregate amount of each Interest Advance outstanding at such time; provided, however, that following a Provider Advance, a Special Termination Advance or a Final Advance, the Maximum Available Commitment shall be zero.

 

Maximum Commitment” means initially $20,957,565.65, as the same may be reduced from time to time in accordance with Section 2.04(a).

 

Non-Excluded Tax” has the meaning specified in Section 3.03.

 

Non-Extension Advance” means an Advance made pursuant to Section 2.02(b).

 

Notice of Borrowing” has the meaning specified in Section 2.02(f).

 

Notice of Replacement Subordination Agent” has the meaning specified in Section 3.08.

 

Participating Institution” has the meaning specified in Section 7.08(b).

 

Performing Note Deficiency” means any time that less than 65% of the then aggregate outstanding principal amount of all Equipment Notes are Performing Equipment Notes.

 

Primary Liquidity Provider” has the meaning specified in the recital of parties to this Agreement.

 

Prospectus Supplement” means the Prospectus Supplement dated November 9, 2004 relating to the Certificates, as such Prospectus Supplement may be amended or supplemented.

 

Provider Advance” means a Downgrade Advance or a Non-Extension Advance.

 

Regulatory Change” has the meaning specified in Section 3.01.

 

Replenishment Amount” has the meaning assigned to such term in Section 2.06(b).

 

Required Amount” means, for any day, (i) so long as there is no Interest Advance made hereunder remaining unreimbursed on such day, the aggregate amount of interest, calculated at the rate per annum equal to the applicable Capped Interest Rate for the Class C Certificates, that would be payable on the Class C Certificates on each of the six successive Regular Distribution Dates immediately following such day, without regard to expected future distributions of principal on such Class of Certificates or (ii) if there is one or more Interest Advances made hereunder and remaining unreimbursed on such day, the sum of (x) the unreimbursed amount of such Interest Advance(s) and (y) the product of (A) the Undrawn Percentage and (B) the amount determined pursuant to clause (i) as if no Interest Advances were outstanding and unreimbursed on such date.  The “Undrawn Percentage” as of any date is equal to one hundred percent minus the sum of the Individual Drawn Percentages for the Interest Advances that are unreimbursed as of such date.  The “Individual Drawn Percentage” for any unreimbursed Interest Advance as of any day is equal to a fraction, expressed as a percentage,

 

6



 

the numerator of which is the unreimbursed amount of such Interest Advance as of such date and the denominator of which is the Required Amount as of the date of each such Interest Advance calculated as if no Interest Advance were outstanding on the date of such Interest Advance and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date.  Repayments of Interest Advances shall be deemed to have been made in the order in which such Interest Advances were made.  Notwithstanding the above, the Pool Balance for purposes of the definition of Required Amount shall be the Preferred C Pool Balance as of such date of determination.

 

Special Termination Advance” means an Advance made pursuant to Section 2.02(e).

 

Special Termination Notice” means the Notice of Special Termination substantially in the form of Annex VIII to this Agreement.

 

Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2C-S.

 

Termination Date” means the earliest to occur of the following:  (i) the Expiry Date; (ii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that all of the Class C Certificates have been paid in full (or provision has been made for such payment in accordance with the Intercreditor Agreement and the Trust Agreement) or are otherwise no longer entitled to the benefits of this Agreement; (iii) the date on which the Borrower delivers to the Primary Liquidity Provider a certificate, signed by a Responsible Officer of the Borrower, certifying that a Replacement Primary Liquidity Facility has been substituted for this Agreement in full pursuant to Section 3.6(e) of the Intercreditor Agreement; (iv) the fifth Business Day following the receipt by the Borrower and JetBlue of a Termination Notice or a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01; and (v) the date on which no Advance is or may (including by reason of reinstatement as herein provided) become available for a Borrowing hereunder.

 

Termination Notice” means the Notice of Termination substantially in the form of Annex V to this Agreement.

 

Unapplied Non-Extension Advance” means the portion of any Non-Extension Advance which is not an Applied Non-Extension Advance.

 

Unapplied Provider Advance” means the portion of any Provider Advance which is not an Applied Provider Advance.

 

Unpaid Advance” has the meaning specified in Section 2.05.

 

(b)                                 Terms Defined in the Intercreditor Agreement.  Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

7



 

ARTICLE II

 

AMOUNT AND TERMS OF THE COMMITMENT

 

Section 2.01                            Advances.  The Primary Liquidity Provider hereby irrevocably agrees, on the terms and conditions hereinafter set forth, to make Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless the obligations of the Primary Liquidity Provider shall be earlier terminated in accordance with the terms of Section 2.04(b)) in an aggregate amount at any time outstanding not to exceed the Maximum Commitment.

 

Section 2.02                            Making the Advances.  (a)  Each “Interest Advance” shall be made in a single Borrowing by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex I, signed by a Responsible Officer of the Borrower, such Interest Advance in an amount not exceeding the Maximum Available Commitment at such time and shall be used solely for the payment when due of Adjusted Interest for the applicable Interest Period on the Class C Certificates at the Stated Interest Rate therefor in accordance with Section 3.6(a) of the Intercreditor Agreement.  Each Interest Advance made hereunder shall automatically reduce the Maximum Available Commitment (based on the Required Amount as recalculated as a result of making such Interest Advance) and the amount available to be borrowed hereunder by subsequent Advances by the amount of such Interest Advance (subject to reinstatement as provided in the next sentence).  Subject to the provisions of Section 3.6(g) of the Intercreditor Agreement, upon repayment to the Primary Liquidity Provider in full or in part of the amount of any Interest Advance made pursuant to this Section 2.02(a), together with accrued interest thereon (as provided herein), the Maximum Available Commitment shall be reinstated by an amount equal to the product of (A) the then Required Amount (calculated as if no Interest Advances are outstanding) and (B) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Advances are reimbursed in the order in which they were made) in respect of principal of such Interest Advance and the denominator of which is the Required Amount at the date of such Interest Advance (calculated as if no Interest Advances are then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date) but not to exceed the Maximum Commitment; provided, however, that the Maximum Available Commitment shall not be so reinstated at any time if (x) (i) a Liquidity Event of Default shall have occurred and be continuing and (ii) there is a Performing Note Deficiency or (y) at any time after the making of a Provider Advance, a Final Advance or a Special Termination Advance.

 

(b)                                 A “Non-Extension Advance” shall be made in a single Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of the Intercreditor Agreement (unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower as contemplated by said Section 3.6(d) within the time period specified in such Section) by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex II attached hereto, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class C Primary Cash Collateral Account in accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.

 

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(c)                                  A “Downgrade Advance” shall be made in a single Borrowing following the occurrence of a Downgrade Event (as provided for in Section 3.6(c) of the Intercreditor Agreement) unless a Replacement Primary Liquidity Facility to replace this Agreement shall have been delivered to the Borrower in accordance with said Section 3.6(c), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex III, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class C Primary Cash Collateral Account in accordance with said Section 3.6(c) and Section 3.6(f) of the Intercreditor Agreement.

 

(d)                                 A “Final Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(a), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex IV, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class C Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(i) of the Intercreditor Agreement).

 

(e)                                  A “Special Termination Advance” shall be made in a single Borrowing upon the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider pursuant to Section 6.01(b), by delivery to the Primary Liquidity Provider of a written and completed Notice of Borrowing in substantially the form of Annex VII, signed by a Responsible Officer of the Borrower, in an amount equal to the Maximum Available Commitment at such time, and shall be used solely to fund the Class C Primary Cash Collateral Account (in accordance with Section 3.6(f) and Section 3.6(k) of the Intercreditor Agreement).

 

(f)                                    Each Borrowing shall be made on notice in writing (a “Notice of Borrowing”) in substantially the form required by Section 2.02(a), 2.02(b), 2.02(c), 2.02(d) or 2.02(e), as the case may be, given by the Borrower to the Primary Liquidity Provider.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 4:00 p.m. (New York City time) on the date of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available in U.S. dollars and in immediately available funds, the amount of such Borrowing to be paid to the Borrower in accordance with its payment instructions.  If a Notice of Borrowing is delivered by the Borrower in respect of any Borrowing on a day that is not a Business Day or after 1:00 p.m. (New York City time) on a Business Day, upon satisfaction of the conditions precedent set forth in Section 4.02 with respect to a requested Borrowing, the Primary Liquidity Provider shall, before 1:00 p.m. (New York City time) on the first Business Day following the day of delivery of such Notice of Borrowing or on such later Business Day specified by the Borrower in such Notice of Borrowing, make available to the Borrower, in accordance with its payment instructions, in U.S. dollars and in immediately available funds, the amount of such Borrowing.  Payments of proceeds of a Borrowing shall be made by wire transfer of immediately available funds to the Borrower in accordance with such wire transfer instructions as the Borrower shall furnish from time to time to the Primary Liquidity Provider for such purpose.  Each Notice of Borrowing shall be irrevocable and binding on the Borrower.  Each Notice of

 

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Borrowing shall be effective upon delivery of a copy thereof to the Primary Liquidity Provider’s New York Branch (with a copy to the Lending Office) at the address specified pursuant to the terms of Section 7.02.

 

(g)                                 Upon the making of any Advance requested pursuant to a Notice of Borrowing in accordance with the Borrower’s payment instructions, the Primary Liquidity Provider shall be fully discharged of its obligation hereunder with respect to such Notice of Borrowing, and the Primary Liquidity Provider shall not thereafter be obligated to make any further Advances hereunder in respect of such Notice of Borrowing to the Borrower or to any other Person.  If the Primary Liquidity Provider makes an Advance requested pursuant to a Notice of Borrowing before 1:00 p.m. (New York City time) on the second Business Day after the date of payment specified in Section 2.02(f), the Primary Liquidity Provider shall have fully discharged its obligations hereunder with respect to such Advance and an event of default shall not have occurred hereunder.  Following the making of any Advance pursuant to Section 2.02(b), Section 2.02(c), Section 2.02(d) or Section 2.02(e) to fund the Class C Primary Cash Collateral Account, the Primary Liquidity Provider shall have no interest in or rights to the Class C Primary Cash Collateral Account, such Advance or any other amounts from time to time on deposit in the Class C Primary Cash Collateral Account; provided, however, that the foregoing shall not affect or impair the obligations of the Subordination Agent to make the distributions contemplated by Section 3.6(e) or (f) of the Intercreditor Agreement and provided further, that the foregoing shall not affect or impair the rights of the Primary Liquidity Provider to provide written instructions with respect to the investment and reinvestment of the amounts in Cash Collateral Accounts to the extent provided in Section 2.2(b) of the Intercreditor Agreement.  By paying to the Borrower proceeds of Advances requested by the Borrower in accordance with the provisions of this Agreement, the Primary Liquidity Provider makes no representation as to, and assumes no responsibility for, the correctness or sufficiency for any purpose of the amount of the Advances so made and requested.

 

Section 2.03                            Fees.  The Borrower agrees to pay to the Primary Liquidity Provider the fees set forth in the Fee Letter applicable to this Agreement.

 

Section 2.04                            Automatic Reductions and Termination of the Maximum Commitment.

 

(a)                                  Automatic Reductions.  Promptly following each date on which the Required Amount is reduced as a result of a reduction in the Pool Balance of the Class C Certificates, or otherwise, the Maximum Commitment shall automatically be reduced to an amount equal to such reduced Required Amount (as calculated by the Borrower).  The Borrower shall give notice of any such automatic reduction of the Maximum Commitment to the Primary Liquidity Provider within two Business Days thereof.  The failure by the Borrower to furnish any such notice shall not affect such automatic reduction of the Maximum Commitment.

 

(b)                                 Termination.  Upon the making of any Provider Advance or the  Special Termination Advance or the making of or conversion to a Final Advance hereunder or the occurrence of the Termination Date, the obligation of the Primary Liquidity Provider to make further Advances hereunder shall automatically and irrevocably terminate, and the Borrower shall not be entitled to request any further Borrowing hereunder.

 

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Section 2.05                            Repayments of Interest Advances, the Special Termination Advance or the Final Advance.  Subject to Sections 2.06, 2.07 and 2.09, the Borrower hereby agrees, without notice of an Advance or demand for repayment from the Primary Liquidity Provider (which notice and demand are hereby waived by the Borrower), to pay, or to cause to be paid, to the Primary Liquidity Provider on each date on which the Primary Liquidity Provider shall make an Interest Advance, the Special Termination Advance or the Final Advance, an amount equal to (a) the amount of such Advance (any such Advance, until repaid, is referred to herein as an “Unpaid Advance”), plus (b) interest on the amount of each such Unpaid Advance as provided in Section 3.07; provided, however, that if (i) the Primary Liquidity Provider shall make a Provider Advance at any time after making one or more Interest Advances which shall not have been repaid in accordance with this Section 2.05 or (ii) this Primary Liquidity Facility shall become a Downgraded Facility or Non-Extended Facility at any time when unreimbursed Interest Advances have reduced the Maximum Available Commitment to zero, then such Interest Advances shall cease to constitute Unpaid Advances and shall be deemed to have been changed into an Applied Downgrade Advance or an Applied Non-Extension Advance, as the case may be, for all purposes of this Agreement (including, for the purpose of determining when such Interest Advance is required to be repaid to the Primary Liquidity Provider in accordance with Section 2.06 and for the purposes of Section 2.06(b)); provided, further, that amounts in respect of a Special Termination Advance withdrawn from the Class C Primary Cash Collateral Account for the purpose of paying interest on the Class C Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being an “Applied Special Termination Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon; and provided, further, that if, following the making of a Special Termination Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Special Termination Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  The Borrower and the Primary Liquidity Provider agree that the repayment in full of each Interest Advance, Special Termination Advance and Final Advance on the date such Advance is made is intended to be a contemporaneous exchange for new value given to the Borrower by the Primary Liquidity Provider.

 

Section 2.06                            Repayments of Provider Advances.  (a) Amounts advanced hereunder in respect of a Provider Advance shall be deposited in the Class C Primary Cash Collateral Account, invested and withdrawn from the Class C Primary Cash Collateral Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor Agreement.  The Borrower agrees to pay to the Primary Liquidity Provider, on each Regular Distribution Date, commencing on the first Regular Distribution Date after the making of a Provider Advance, interest on the principal amount of any such Provider Advance as provided in Section 3.07; provided, however, that amounts in respect of a Provider Advance withdrawn from the Class C Primary Cash Collateral Account for the purpose of paying interest on the Class C Certificates in accordance with Section 3.6(f) of the Intercreditor Agreement (the amount of any such withdrawal being (y) in the case of a Downgrade Advance, an “Applied Downgrade Advance” and (z) in the case of a Non-Extension Advance, an “Applied Non-Extension Advance” and, together with an Applied Downgrade Advance, an “Applied Provider Advance”) shall thereafter (subject to Section 2.06(b)) be treated as an Interest Advance under this Agreement for purposes of

 

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determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable; and provided, further, that if, following the making of a Provider Advance, the Primary Liquidity Provider delivers a Termination Notice to the Borrower pursuant to Section 6.01(a), such Provider Advance shall thereafter be treated as a Final Advance under this Agreement for purposes of determining the Applicable Liquidity Rate for interest payable thereon and the dates on which such interest is payable.  Subject to Sections 2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the Class C Primary Cash Collateral Account on account of a reduction in the Required Amount, the Borrower shall repay to the Primary Liquidity Provider a portion of the Provider Advances in a principal amount equal to the amount of such reduction, plus interest on the principal amount prepaid as provided in Section 3.07.

 

(b)                                 At any time when an Applied Provider Advance (or any portion thereof) is outstanding, upon the deposit in the Class C Primary Cash Collateral Account of any amount pursuant to Section 2.4(a) of the Intercreditor Agreement or clause fourth of Section 3.2 of the Intercreditor Agreement (any such amount being a “Replenishment Amount”) for the purpose of replenishing or increasing the balance thereof up to the amount of the Required Amount at such time, (i) the aggregate outstanding principal amount of all Applied Provider Advances (and of Provider Advances treated as an Interest Advance for purposes of determining the Applicable Liquidity Rate for interest payable thereon) shall be automatically reduced by the amount of such Replenishment Amount and (ii) the aggregate outstanding principal amount of all Unapplied Provider Advances shall be automatically increased by the amount of such Replenishment Amount.

 

(c)                                  Upon the provision of a Replacement Primary Liquidity Facility in replacement of this Agreement in accordance with Section 3.6(e) or 2.7(c) of the Intercreditor Agreement, amounts remaining on deposit in the Class C Primary Cash Collateral Account after giving effect to any Applied Provider Advance on the date of such replacement shall be reimbursed to the Primary Liquidity Provider, but only to the extent such amounts are necessary to repay in full to the Primary Liquidity Provider all amounts owing to it hereunder.

 

Section 2.07                            Payments to the Primary Liquidity Provider Under the Intercreditor Agreement.  In order to provide for payment or repayment to the Primary Liquidity Provider of any amounts hereunder, the Intercreditor Agreement provides that amounts available and referred to in Articles II and III of the Intercreditor Agreement, to the extent payable to the Primary Liquidity Provider pursuant to the terms of the Intercreditor Agreement (including, without limitation, Sections 3.6(f) and 2.7(c) of the Intercreditor Agreement), shall be paid to the Primary Liquidity Provider in accordance with the terms thereof.  Amounts so paid to, and not required to be returned by, the Primary Liquidity Provider shall be applied by the Primary Liquidity Provider to Liquidity Obligations then due and payable in the order of priority required by the applicable provisions of Articles II and III of the Intercreditor Agreement or, if not provided for in the Intercreditor Agreement, then in such manner as the Primary Liquidity Provider shall deem appropriate, and shall discharge in full the corresponding obligations of the Borrower hereunder.

 

Section 2.08                            Book Entries.  The Primary Liquidity Provider shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the

 

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Borrower resulting from Advances made from time to time and the amounts of principal and interest payable hereunder and paid from time to time in respect thereof; provided, however, that the failure by the Primary Liquidity Provider to maintain such account or accounts shall not affect the obligations of the Borrower in respect of Advances.

 

Section 2.09                            Payments from Available Funds Only.  All payments to be made by the Borrower under this Agreement shall be made only from amounts that constitute Scheduled Payments or Special Payments or payments under the Fee Letter, Section 7.1 of the Participation Agreements, and Section 6 of the Note Purchase Agreement, and only to the extent that the Borrower shall have sufficient income or proceeds therefrom to enable the Borrower to make payments in accordance with the terms hereof after giving effect to the priority of payments provisions set forth in the Intercreditor Agreement.  The Primary Liquidity Provider agrees that it shall look solely to such amounts to the extent available for distribution to it as provided in the Intercreditor Agreement and this Agreement and that the Borrower, in its individual capacity, is not personally liable to it for any amounts payable or liability under this Agreement except as expressly provided in this Agreement or the Intercreditor Agreement.  Amounts on deposit in the Class C Primary Cash Collateral Account shall be available to the Borrower to make payments under this Agreement only to the extent and for the purposes expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.

 

Section 2.10                            Extension of Expiry Date; Non-Extension Advance.  No earlier than the 60th day and no later than the 40th day prior to the then effective Expiry Date (unless such Expiry Date is on or after the date that is 15 days after the Final Legal Distribution Date for the Class C Certificates), the Borrower shall request that the Primary Liquidity Provider extend the Expiry Date to the earlier of (i) the date that is 15 days after the Final Legal Distribution Date for the Class C Certificates and (ii) the date that is the day immediately preceding the 364th day occurring after the last day of the Consent Period (as hereinafter defined).  Whether or not the Borrower has made such request, the Primary Liquidity Provider shall advise the Borrower, no earlier than the 40th day (or, if earlier, the date of the Primary Liquidity Provider’s receipt of such request, if any, from the Borrower) and no later than the 25th day prior to the then effective Expiry Date (such period the “Consent Period”), whether, in its sole discretion, it agrees to so extend the Expiry Date.  If the Primary Liquidity Provider advises the Borrower on or before the date on which the Consent Period ends that such Expiry Date shall not be so extended, or fails to irrevocably and unconditionally advise the Borrower on or before the date on which the Consent Period ends that such Expiry Date shall be so extended  (and, in each case, if the Primary Liquidity Provider shall not have been replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be entitled on and after the date on which the Consent Period ends (but prior to the then effective Expiry Date) to request a Non-Extension Advance in accordance with Section 2.2(b) and Section 3.6(d) of the Intercreditor Agreement.

 

Section 2.11                            Right to Further Extend Expiry Date.  Subject to the proviso in the immediately succeeding sentence and at no additional cost or expense of the Borrower or JetBlue, the Primary Liquidity Provider shall have the right at any time and without the consent of the Borrower to extend the then effective Expiry Date to the date that is up to 15 days after the Final Legal Distribution Date for the Class C Certificates by giving not less than five nor more than ten days’ prior written notice of such extension to the Borrower, the Trustee, each Rating Agency and JetBlue (which notice shall specify the effective date of such extension (the

 

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Extension Effective Date”)).  On the Extension Effective Date, the then effective Expiry Date shall be so extended without any further act; provided, however, that if prior to the Extension Effective Date a Downgrade Event shall have occurred, then the effective Expiry Date shall not be so extended.

 

ARTICLE III

 

OBLIGATIONS OF THE BORROWER

 

Section 3.01                            Increased Costs.  The Borrower shall pay to the Primary Liquidity Provider from time to time such amounts as may be necessary to compensate the Primary Liquidity Provider for any costs incurred by the Primary Liquidity Provider which are attributable to its making or maintaining any Advances hereunder or its obligation to make any such Advances hereunder, or any reduction in any amount receivable by the Primary Liquidity Provider under this Agreement or the Intercreditor Agreement in respect of any such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any change after the date of this Agreement in U.S. federal, state, or municipal, or any foreign laws or regulations, or the adoption or making after such date of any interpretation, regulation, directive, or requirement applying to a class of banks including the Primary Liquidity Provider whether or not having the force of law, by any court or governmental or monetary authority charged with the interpretation or administration thereof (a “Regulatory Change”), which: (1) changes the basis of taxation of any amounts payable to the Primary Liquidity Provider under this Agreement in respect of any such Advances or such obligation (other than Excluded Taxes or any Non-Excluded Taxes); or (2) imposes or modifies any reserve, special deposit, compulsory loan or similar requirements relating to any extensions of credit or other assets of, or any deposits with other liabilities of, the Primary Liquidity Provider (including any such Advances or such obligation or any deposits referred to in the definition of LIBOR or related definitions).  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.01 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.01 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.01; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.01 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.01 of the effect of any Regulatory Change on its costs of making or maintaining Advances or its obligation to make any Advances hereunder or on amounts receivable by it in respect of Advances, and of the additional amounts required to

 

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compensate the Primary Liquidity Provider in respect of any Additional Costs, shall be prima facie evidence of the amount owed under this Section 3.01.

 

Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.02                            Capital Adequacy.  If (1) the adoption, after the date hereof, of any applicable governmental law, rule or regulation regarding capital adequacy, (2) any change, after the date hereof, in the interpretation or administration of any such law, rule or regulation by any central bank or other governmental authority charged with the interpretation or administration thereof or (3) compliance by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider with any applicable guideline or request from any central bank or other governmental authority (whether or not having the force of law), issued after the date hereof, that constitutes a change in the nature described in clause (2), has the effect of requiring an increase in the amount of capital required to be maintained by the Primary Liquidity Provider or any corporation controlling the Primary Liquidity Provider, and such increase is based upon the Primary Liquidity Provider’s obligations hereunder (including funded obligations) and other similar obligations, the Borrower shall, subject to the provisions of the next paragraph, pay to the Primary Liquidity Provider from time to time such additional amount or amounts as are necessary to compensate the Primary Liquidity Provider for the portion of such increase as shall be reasonably allocable to the Primary Liquidity Provider’s obligations to the Borrower hereunder.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any amount payable under this Section 3.02 that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

From and after the Extension Effective Date, the Primary Liquidity Provider will be entitled to compensation pursuant to this Section 3.02 only to the extent that the Primary Liquidity Provider would have been so entitled if the Extension Effective Date had not occurred.

 

The Primary Liquidity Provider shall notify the Borrower of any event occurring after the date of this Agreement that shall entitle the Primary Liquidity Provider to compensation pursuant to this Section 3.02 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall describe in reasonable detail the calculation of the amounts owed under this Section 3.02; provided, that if the Primary Liquidity Provider fails to give such notice within 180 days after it obtains such knowledge, the Primary Liquidity Provider shall, with respect to any costs resulting from such event, only be entitled to payment under this Section 3.02 for costs incurred from and after the date 180 days prior to the date the Primary Liquidity Provider does give such notice.  Determinations by the Primary Liquidity Provider for purposes of this Section 3.02 of the effect of any increase in the amount of capital required to be maintained by the Primary Liquidity Provider and of the amount allocable to the Primary Liquidity Provider’s obligations to the Borrower hereunder shall be prima facie evidence of the amounts owed under this Section 3.02.

 

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Notwithstanding the preceding two paragraphs, the Primary Liquidity Provider and the Subordination Agent agree that any permitted assignee or participant of the initial Primary Liquidity Provider that is not a bank shall not be entitled to the benefits of the preceding two paragraphs (but without limiting the provisions of Section 7.08 hereof).

 

Section 3.03                            Payments Free of Deductions.  (a)  All payments made by the Borrower under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes, excluding Excluded Taxes (such non-excluded taxes being referred to herein, collectively, as “Non-Excluded Taxes”).  If any Non-Excluded Taxes are required to be withheld or deducted from any amounts payable to the Primary Liquidity Provider under this Agreement, the Borrower shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Non-Excluded Taxes (and any additional Non-Excluded Taxes in respect of the payment required under clause (ii) below) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Primary Liquidity Provider an additional amount which (after deduction of all such Non-Excluded Taxes) shall be sufficient to yield to the Primary Liquidity Provider the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment hereunder, the Borrower shall furnish to the Primary Liquidity Provider the original or a certified copy of (or other documentary evidence of) the payment of the Non-Excluded Taxes applicable to such payment.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with its internal policies and with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise materially disadvantageous to the Primary Liquidity Provider.  The Primary Liquidity Provider shall deliver to the Borrower such certificates and documents, including, without limitation, original W-8BEN or W-8ECI forms, or any successor forms, as may be reasonably requested by the Borrower and required by applicable law to establish that payments hereunder are exempt from (or entitled to a reduced rate of) withholding Tax.

 

(b)                                 All payments (including, without limitation, Advances) made by the Primary Liquidity Provider under this Agreement shall be made free and clear of, and without reduction for or on account of, any Taxes.  If any Taxes are required to be withheld or deducted from any amounts payable to the Borrower under this Agreement, the Primary Liquidity Provider shall (i) within the time prescribed therefor by applicable law pay to the appropriate governmental or taxing authority the full amount of any such Taxes (and any additional Taxes in respect of the additional amounts payable under clause (ii) hereof) and make such reports or returns in connection therewith at the time or times and in the manner prescribed by applicable law, and (ii) pay to the Borrower an additional amount which (after deduction of all such Taxes) shall be sufficient to yield to the Borrower the full amount which would have been received by it had no such withholding or deduction been made.  Within 30 days after the date of each payment under this Section 3.03(b), the Primary Liquidity Provider shall furnish to the Borrower the original or a certified copy of (or other documentary evidence of) the payment of the Taxes applicable to such payment.

 

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(c)                                  If any exemption from, or reduction in the rate of, any Taxes is reasonably available to the Borrower to establish that payments under this Agreement are exempt from (or entitled to a reduced rate of) tax, the Borrower shall deliver to the Primary Liquidity Provider such form or forms and such other evidence of the eligibility of the Borrower for such exemption or reduction as the Primary Liquidity Provider may reasonably identify to the Borrower as being required as a condition to exemption from, or reduction in the rate of, any Taxes.

 

Section 3.04                            Payments.  The Borrower shall make or cause to be made each payment to the Primary Liquidity Provider under this Agreement so as to cause the same to be received by the Primary Liquidity Provider not later than 1:00 P.M. (New York City time) on the day when due.  The Borrower shall make all such payments in lawful money of the United States of America, to the Primary Liquidity Provider in immediately available funds, by wire transfer to Deutsche Bank Trust Co. Americas, New York, ABA No. 021001033, Swift Code: BKTR US 33, Account Holder: Landesbank Baden-Württemberg, Stuttgart, Account No. 04-095-107, Swift Code: SOLADEST, Reference:  3371 Loan Administration, JetBlue EETC 2004-2, or such other account as the Primary Liquidity Provider shall notify the Borrower.

 

Section 3.05                            Computations.  All computations of interest based on the Base Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the LIBOR shall be made on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable.

 

Section 3.06                            Payment on Non-Business Days.  Whenever any payment to be made hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day (and if so made, shall be deemed to have been made when due).

 

Section 3.07                            Interest.  (a)  Subject to Section 2.09, the Borrower shall pay, or shall cause to be paid, without duplication, interest on (i) the unpaid principal amount of each Advance from and including the date of such Advance (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, from and including the date on which the amount thereof was withdrawn from the Class C Primary Cash Collateral Account to pay interest on the Class C Certificates) to but excluding the date such principal amount shall be paid in full (or, in the case of an Applied Provider Advance or Applied Special Termination Advance, the date on which the Class C Primary Cash Collateral Account is fully replenished in respect of such Advance) and (ii) any other amount due hereunder (whether fees, commissions, expenses or other amounts or to the extent permitted by applicable law,  installments of interest on Advances or any such other amount) which is not paid when due (whether at stated maturity, by acceleration or otherwise) from and including the due date thereof to but excluding the date such amount is paid in full, in each such case, at a fluctuating interest rate per annum for each day equal to the Applicable Liquidity Rate (as defined below) for such Advance or such other amount as in effect for such day, but in no event at a rate per annum greater than the maximum rate permitted by applicable law; provided, however, that, if at any time the otherwise applicable interest rate as set forth in this Section 3.07 shall exceed the maximum rate permitted by applicable law, then any subsequent reduction in such interest rate shall not reduce the rate of interest payable pursuant to this Section 3.07 below the maximum rate permitted by applicable

 

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law until the total amount of interest accrued equals the amount of interest that would have accrued if such otherwise applicable interest rate as set forth in this Section 3.07 had at all times been in effect.  Nothing contained in this Section 3.07 shall require the Borrower to pay any amount under this Section 3.07 other than as specified in Section 2.09.

 

(b)                                 Except as provided in Section 3.07(e), each Advance shall be either a Base Rate Advance or a LIBOR Advance as provided in this Section or Section 3.10.  Each such Advance shall be a Base Rate Advance for the period from the date of its borrowing to (but excluding) the third London/Stuttgart Business Day following the Primary Liquidity Provider’s receipt of the Notice of Borrowing for such Advance.  Thereafter, such Advance shall be a LIBOR Advance.

 

(c)                                  Each LIBOR Advance shall bear interest during each Interest Period at a rate per annum equal to LIBOR for such Interest Period plus the Applicable Margin for such LIBOR Advance, payable in arrears on the last day of such Interest Period and, in the event of the payment of principal of such LIBOR Advance on a day other than such last day, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(d)                                 Each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin, payable in arrears on each Regular Distribution Date and, in the event of the payment of principal of such Base Rate Advance on a day other than a Regular Distribution Date, on the date of such payment (to the extent of interest accrued on the amount of principal repaid).

 

(e)                                  Each (i) outstanding Unapplied Non-Extension Advance and (ii) outstanding Unapplied Downgrade Advance with respect to which the Primary Liquidity Provider has elected pursuant to the provision in Section 3.6(e)(i)(C) of the Intercreditor Agreement not to be replaced, from the date of such election, shall bear interest in an amount equal to the Investment Earnings on amounts on deposit in the Class C Primary Cash Collateral Account plus the Applicable Margin, payable in arrears on each Regular Distribution Date.

 

(f)                                    Each amount not paid when due hereunder (whether fees, commissions, expenses or other amounts or, to the extent permitted by applicable law, installments of interest on Advances but excluding Advances) shall bear interest at a rate per annum equal to the Base Rate plus 1.00% per annum.

 

(g)                                 Each change in the Base Rate shall become effective immediately.  The rates of interest specified in this Section 3.07 with respect to any Advance or other amount shall be referred to as the “Applicable Liquidity Rate.”

 

Section 3.08                            Replacement of Borrower.  Subject to Section 5.02, from time to time and subject to the successor Borrower’s meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor Agreement applicable to the Subordination Agent, upon the effective date and time specified in a written and completed Notice of Replacement Subordination Agent in substantially the form of Annex VI (a “Notice of Replacement Subordination Agent”) delivered to the Primary Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be substituted for as the Borrower for all purposes hereunder.

 

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Section 3.09                            Funding Loss Indemnification.  The Borrower shall pay to the Primary Liquidity Provider, upon the request of the Primary Liquidity Provider, such amount or amounts as shall be sufficient (in the reasonable opinion of the Primary Liquidity Provider) to compensate it for any loss, cost, or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the Primary Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of anticipated profits) incurred as a result of:

 

(1)                                  Any repayment of a LIBOR Advance on a date other than the last day of the Interest Period for such Advance; or

 

(2)                                  Any failure by the Borrower to borrow a LIBOR Advance on the date for borrowing specified in the relevant notice under Section 2.02.

 

Section 3.10                            Illegality.  Notwithstanding any other provision in this Agreement, if any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Primary Liquidity Provider (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the Primary Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR Advances, then upon notice to the Borrower by the Primary Liquidity Provider, the outstanding principal amount of the LIBOR Advances shall be converted to Base Rate Advances (a) immediately upon demand of the Primary Liquidity Provider, if such change or compliance with such request, in the judgment of the Primary Liquidity Provider, requires immediate repayment; or (b) at the expiration of the last Interest Period to expire before the effective date of any such change or request.  The Primary Liquidity Provider agrees to use reasonable efforts (consistent with applicable legal and regulatory restrictions) to change the jurisdiction of its Lending Office if making such change would avoid or cure the aforesaid illegality and would not, in the reasonable judgment of the Primary Liquidity Provider, be otherwise disadvantageous to the Primary Liquidity Provider.

 

ARTICLE IV

 

CONDITIONS PRECEDENT

 

Section 4.01                            Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied or waived by the appropriate party or parties:

 

(a)                                  The Primary Liquidity Provider shall have received on or before the Closing Date each of the following and in the case of each document delivered pursuant to paragraphs (i), (ii) and (iii), in form and substance satisfactory to the Primary Liquidity Provider:

 

(i)                                     This Agreement duly executed on behalf of the Borrower;

 

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(ii)                                  The Intercreditor Agreement, Tax Letter and Fee Letter duly executed on behalf of each of the parties thereto (other than the Primary Liquidity Provider);

 

(iii)                               Fully executed copies of each of the Operative Agreements executed and delivered on or before the Closing Date (other than this Agreement, the Intercreditor Agreement, Tax Letter and the Fee Letter);

 

(iv)                              A copy of the Prospectus Supplement and specimen copies of the Class C Certificates;

 

(v)                                 An executed copy of each opinion, document, instrument and certificate delivered on or before the Closing Date pursuant to the Class C Trust Agreement, the Intercreditor Agreement, the Note Purchase Agreement and the other Operative Agreements entered into on or prior to the date hereof (in the case of each such opinion, other than the opinion of counsel for the Underwriters, either addressed to the Primary Liquidity Provider or accompanied by a letter from the counsel rendering such opinion to the effect that the Primary Liquidity Provider is entitled to rely on such opinion as of its date as if it were addressed to the Primary Liquidity Provider);

 

(vi)                              Evidence that there shall have been made and shall be in full force and effect, all filings, recordings and/or registrations, and there shall have been given or taken any notice or other similar action as may be reasonably necessary or, to the extent reasonably requested by the Primary Liquidity Provider, reasonably advisable, in order to establish, perfect, protect and preserve the right, title and interest, remedies, powers, privileges, liens and security interests of, or for the benefit of, the Trustee and the Primary Liquidity Provider created by the Operative Agreements executed and delivered on or before the Closing Date;

 

(vii)                           An agreement from JetBlue, pursuant to which JetBlue agrees to provide copies of quarterly financial statements and audited annual financial statements to the Primary Liquidity Provider provided that so long as JetBlue is subject to the reporting requirements of the Securities Exchange Act of 1934, such information will be considered provided if it is made available on the EDGAR database of the Securities and Exchange Commission;

 

(viii)                        Legal opinions from (a) Morris, James, Hitchens & Williams LLP, special counsel to the Borrower and (b) Vedder, Price, Kaufman & Kammholz, P.C., special counsel to JetBlue, each in form and substance reasonably satisfactory to the Primary Liquidity Provider; and

 

(ix)                                Such other documents, instruments, opinions and approvals as the Primary Liquidity Provider shall have reasonably requested.

 

(b)                                 The following statements shall be true on and as of the Effective Date:

 

(i)                                     The representations and warranties in the Note Purchase Agreement and each of the Participation Agreements entered into on or prior to the date

 

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hereof are true and correct on and as of the Effective Date as though made on and as of the Effective Date;

 

(ii)                                  No event has occurred and is continuing, or would result from the entering into of this Agreement or the making of any Advance, which constitutes a Liquidity Event of Default; and

 

(iii)                               There has been no material adverse change in the financial condition or results of operations of JetBlue and its subsidiaries taken as a whole since December 31, 2003.

 

(c)                                  The Primary Liquidity Provider shall have received payment in full of all fees and other sums required to be paid to or for the account of the Primary Liquidity Provider on or prior to the Effective Date.

 

(d)                                 All conditions precedent to the issuance of the Certificates under the Trust Agreements shall have been satisfied or waived, all conditions precedent to the effectiveness of the other Liquidity Facilities shall have been satisfied or waived, and all conditions precedent to the purchase of the Certificates by the Underwriters under the Underwriting Agreement shall have been satisfied (unless any of such conditions precedent shall have been waived by the Underwriters).

 

(e)                                  The Borrower shall have received a certificate, dated the date hereof, signed by a duly authorized representative of the Primary Liquidity Provider, certifying that all conditions precedent to the effectiveness of Section 2.01 have been satisfied or waived by the Primary Liquidity Provider.

 

Section 4.02                            Conditions Precedent to Borrowing.  The obligation of the Primary Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, on or prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.

 

ARTICLE V

 

COVENANTS

 

Section 5.01                            Affirmative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider hereunder, the Borrower shall, unless the Primary Liquidity Provider shall otherwise consent in writing:

 

(a)                                  Performance of Agreements.  Punctually pay or cause to be paid all amounts payable by it under this Agreement and the other Operative Agreements and observe and perform in all material respects the conditions, covenants and requirements applicable to it contained in this Agreement and the other Operative Agreements.

 

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(b)                                 Reporting Requirements.  Furnish to the Primary Liquidity Provider with reasonable promptness, such information and data with respect to the transactions contemplated by the Operative Agreements as from time to time may be reasonably requested by the Primary Liquidity Provider; and permit the Primary Liquidity Provider, upon reasonable notice, to inspect the Borrower’s books and records with respect to such transactions and to meet with officers and employees of the Borrower to discuss such transactions.

 

(c)                                  Certain Operative Agreements.  Furnish to the Primary Liquidity Provider with reasonable promptness any Operative Agreement entered into after the date hereof as from time to time may be reasonably requested by the Primary Liquidity Provider.

 

Section 5.02                            Negative Covenants of the Borrower.  So long as any Advance shall remain unpaid or the Primary Liquidity Provider shall have any commitment hereunder or the Borrower shall have any obligation to pay any amount to the Primary Liquidity Provider hereunder, the Borrower shall not appoint or permit or suffer to be appointed any successor Borrower without the written consent of the Primary Liquidity Provider, which consent shall not be unreasonably withheld or delayed.

 

ARTICLE VI

 

LIQUIDITY EVENTS OF DEFAULT AND SPECIAL TERMINATION

 

Section 6.01                            Liquidity Events of Default and Special Termination.  (a) If (i) any Liquidity Event of Default has occurred and is continuing and (ii) there is a Performing Note Deficiency, the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Termination Notice, the effect of which shall be to cause (A) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Termination Notice is received by the Borrower and JetBlue, (B) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Final Advance in accordance with Section 2.02(d) and Section 3.6(i) of the Intercreditor Agreement, (C) all other outstanding Advances to be automatically converted into Final Advances for purposes of determining the Applicable Liquidity Rate for interest payable thereon, and (D) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance), any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

(b)                                 If an Indenture Event of Default arising due to a payment default on any Series C Equipment Note occurs under any Indenture and such Indenture Event of Default is not cured in full by the earlier of (x) the end of the 36-month period beginning on the date of such Indenture Event of Default and (y) October 15, 2008 the Primary Liquidity Provider may, in its discretion, deliver to the Borrower a Special Termination Notice, the effect of which shall be to cause (i) the obligation of the Primary Liquidity Provider to make Advances hereunder to expire on the fifth Business Day after the date on which such Special Termination Notice is received by the Borrower and JetBlue, (ii) the Borrower to promptly request, and the Primary Liquidity Provider to promptly make, a Special Termination Advance in accordance with Section 2.02(e) and Section 3.6(k) of the Intercreditor Agreement, and (iii) subject to Sections 2.07 and 2.09, all Advances (including, without limitation, any Provider Advance and Applied Provider Advance),

 

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any accrued interest thereon and any other amounts outstanding hereunder to become immediately due and payable to the Primary Liquidity Provider.

 

ARTICLE VII

 

MISCELLANEOUS

 

Section 7.01                            Amendments, Etc.  No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Primary Liquidity Provider, and, in the case of an amendment, the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

Section 7.02                            Notices, Etc.  Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be made in writing (including sent by telecopier) and to the following address:

 

Borrower:                                          Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE  19890-0001
Attention:  Corporate Trust Administration
Telephone: 302-651-1000
Telecopy: 302-651-8882

 

Liquidity

Provider:                                              Landesbank Baden-Württemberg
Am Hauptbahnhof 2
D-70173 Stuttgart
Germany
Attention: Structured Finance
Telephone: +49-711-124-9757
Telecopy: +49-711-124-9747

 

with a copy of any Notice of Borrowing to:

 

Landesbank Baden-Württemberg
280 Park Avenue, West Building, 31st Floor
New York, New York 10017

Attention:   Claudia Rothe, Vice President
Bette Smolen, Assistant Vice President
Vincent Chu

Telephone: 212-584-1700
Telecopy: 212-584-1729

 

or, as to each of the foregoing, at such other address as shall be designated by such Person in a Written Notice to the others.  All such notices and communications shall be effective (i) if given by telecopier, when transmitted to the telecopier number specified above with receipt confirmed,

 

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and received in legible form (ii) if given by mail, five Business Days after being deposited in the mails addressed as specified above, and (iii) if given by other means, when delivered at the address specified above, except that written notices to the Primary Liquidity Provider pursuant to the provisions of Articles II and III shall not be effective until received by the Primary Liquidity Provider, subject to the last sentence of Section 2.02(f).  A copy of all notices delivered hereunder to either party shall in addition be delivered to each of the parties to the Participation Agreements at their respective addresses set forth therein.

 

Section 7.03                            No Waiver; Remedies.  No failure on the part of the Primary Liquidity Provider to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

Section 7.04                            Further Assurances.  The Borrower agrees to do such further acts and things and to execute and deliver to the Primary Liquidity Provider such additional assignments, agreements, powers and instruments as the Primary Liquidity Provider may reasonably require or deem advisable to carry into effect the purposes of this Agreement and the other Operative Agreements or to better assure and confirm unto the Primary Liquidity Provider its rights, powers and remedies hereunder and under the other Operative Agreements.

 

Section 7.05                            Indemnification; Survival of Certain Provisions.  The Primary Liquidity Provider shall be indemnified hereunder to the extent and in the manner described in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements.  In addition, the Borrower agrees to indemnify, protect, defend and hold harmless each Liquidity Indemnitee from, against and in respect of, and shall pay on demand, all Expenses of any kind or nature whatsoever (other than any Expenses of the nature described in Section 3.01, 3.02 or 7.07 hereof or in the Fee Letter (regardless of whether indemnified against pursuant to said Sections or in such Fee Letter)) that may be imposed on, incurred by or asserted against any  Liquidity Indemnitee, in any way relating to, resulting from, or arising out of or in connection with any action, suit or proceeding by any third party against such Liquidity Indemnitee and relating to this Agreement, the Intercreditor Agreement, the Fee Letter, the Tax Letter or any Participation Agreement; provided, however, that the Borrower shall not be required to indemnify, protect, defend and hold harmless any Liquidity Indemnitee in respect of any Expense of such Liquidity Indemnitee to the extent such Expense is (i) attributable to the gross negligence or willful misconduct of such Liquidity Indemnitee or any other Liquidity Indemnitee, (ii) ordinary and usual operating overhead expense or (iii) attributable to the failure by such Liquidity Indemnitee or any other Liquidity Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in this Agreement, the Intercreditor Agreement, the Fee Letter or any other Operative Agreement to which it is a party.  The indemnities contained in this Section 7.05, in Section 6 of the Note Purchase Agreement and Section 7.1 of the Participation Agreements and the provisions of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 shall survive the termination of this Agreement.

 

Section 7.06                            Liability of the Primary Liquidity Provider.  (a)  Neither the Primary Liquidity Provider nor any of its officers, directors, employees or Affiliates shall be liable or responsible for: (i) the use which may be made of this Agreement or the Advances or any acts or

 

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omissions of the Borrower or any beneficiary or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (iii) the making of Advances by the Primary Liquidity Provider against delivery of a Notice of Borrowing and other documents which do not comply with the terms hereof; provided, however, that the Borrower shall have a claim against the Primary Liquidity Provider, and the Primary Liquidity Provider shall be liable to the Borrower, to the extent of any damages (other than punitive damages (the right to receive punitive damages being hereby waived)) suffered by the Borrower which were the result of (A) the Primary Liquidity Provider’s willful misconduct or negligence in determining whether documents presented hereunder comply with the terms hereof, or (B) any breach by the Primary Liquidity Provider of any of the terms of this Agreement, including, but not limited to, the Primary Liquidity Provider’s failure to make lawful payment hereunder after the delivery to it by the Borrower of a Notice of Borrowing complying with the terms and conditions hereof.

 

(b)                                 Neither the Primary Liquidity Provider nor any of its officers, employees, directors or Affiliates shall be liable or responsible in any respect for (i) any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with this Agreement or any Notice of Borrowing delivered hereunder, or (ii) any action, inaction or omission which may be taken by it in good faith, absent willful misconduct or negligence (in which event the extent of the Primary Liquidity Provider’s potential liability to the Borrower shall be limited as set forth in the preceding paragraph), in connection with this Agreement or any Notice of Borrowing.

 

Section 7.07                            Costs, Expenses and Taxes.  The Borrower agrees to pay, or cause to be paid (A) subject to the terms of the Fee Letter on the Effective Date and on such later date or dates on which the Primary Liquidity Provider shall make demand, all reasonable out-of-pocket costs and expenses of the Primary Liquidity Provider in connection with the preparation, negotiation, execution, delivery, filing and recording of this Agreement, any other Operative Agreement and any other documents which may be delivered in connection with this Agreement, including, without limitation, the reasonable fees and expenses of outside counsel for the Primary Liquidity Provider and (B) on demand, all reasonable costs and expenses of the Primary Liquidity Provider (including reasonable counsel fees and expenses) in connection with (i) the enforcement of this Agreement or any other Operative Agreement, (ii) the modification or amendment of, or supplement to, this Agreement or any other Operative Agreement or such other documents which may be delivered in connection herewith or therewith (whether or not the same shall become effective) or (iii) any action or proceeding relating to any order, injunction, or other process or decree restraining or seeking to restrain the Primary Liquidity Provider from paying any amount under this Agreement, the Intercreditor Agreement or any other Operative Agreement or otherwise affecting the application of funds in the Class C Primary Cash Collateral Account.  In addition, the Borrower shall pay any and all recording, stamp and other similar taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, any other Operative Agreement and such other documents in connection with this Agreement, and agrees to hold the Primary Liquidity Provider harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes or fees.

 

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Section 7.08                            Binding Effect; Participations.  (a)  This Agreement shall be binding upon and inure to the benefit of the Borrower and the Primary Liquidity Provider and their respective successors and assigns, except that neither the Primary Liquidity Provider (except as otherwise provided in this Section 7.08) nor the Borrower (except as contemplated by Section 3.08) shall have the right to assign its rights or obligations hereunder or any interest herein without the prior written consent of the other party, subject to the requirements of Section 7.08(b).  The Primary Liquidity Provider may grant participations herein or in any of its rights hereunder and under the other Operative Agreements to such Persons (other than JetBlue or any of its Affiliates) as the Primary Liquidity Provider may in its sole discretion select, subject to the requirements of Section 7.08(b).  No such participation by the Primary Liquidity Provider, however, shall relieve the Primary Liquidity Provider of its obligations hereunder.  In connection with any participation or any proposed participation, the Primary Liquidity Provider may disclose to the participant or the proposed participant any information that the Borrower is required to deliver or to disclose to the Primary Liquidity Provider pursuant to this Agreement.  The Borrower acknowledges and agrees that the Primary Liquidity Provider’s source of funds may derive in part from its participants.  Accordingly, references in this Agreement and the other Operative Agreements to determinations, reserve and capital adequacy requirements, increased costs, reduced receipts and the like as they pertain to the Primary Liquidity Provider shall be deemed also to include those of each of its participants that are banks (subject, in each case, to the maximum amount that would have been incurred by or attributable to the Primary Liquidity Provider directly if the Primary Liquidity Provider, rather than the participant, had held the interest participated other than as a result of a change in law following the date of any participation).

 

(b)                                 If, pursuant to Section 7.08(a) above, the Primary Liquidity Provider sells any participation in this Agreement to any bank or other entity (each, a “Participating Institution”), then, concurrently with the effectiveness of such participation, the Participating Institution shall (i) represent to the Primary Liquidity Provider (for the benefit of the Primary Liquidity Provider and the Borrower) either (A) that it is incorporated under the laws of the United States or a state thereof or (B) that under applicable law and treaties, no taxes shall be required to be withheld by the Borrower or the Primary Liquidity Provider with respect to any payments to be made to such Participating Institution in respect of this Agreement, (ii) furnish to the Primary Liquidity Provider and the Borrower either (x) a statement that it is incorporated under the laws of the United States or a state thereof or (y) if it is not so incorporated, two copies of a properly completed United States Internal Revenue Service Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, certificate or document prescribed by the Internal Revenue Service certifying, in each case, such Participating Institution’s entitlement to a complete exemption from United States federal withholding tax in respect to any and all payments to be made hereunder, and (iii) agree (for the benefit of the Primary Liquidity Provider and the Borrower) to provide the Primary Liquidity Provider and the Borrower a new Form W-8ECI or Form W-8BEN, as appropriate, or other applicable form, (A) on or before the date that any such form expires or becomes obsolete or (B) after the occurrence of any event requiring a change in the most recent form previously delivered by it and prior to the immediately following due date of any payment by the Borrower hereunder, certifying in the case of a Form W-8BEN or Form W-8ECI that such Participating Institution is entitled to a complete exemption from United States federal withholding tax on payments under this Agreement.  Unless the Borrower has received forms or other documents reasonably satisfactory to it (and required by applicable law) from the Participating Institution indicating that payments hereunder are not

 

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subject to United States federal withholding tax, the Borrower shall withhold taxes as required by law from such payments at the applicable statutory rate without any obligation to make additional payments under Section 3.03.

 

(c)                                  Notwithstanding the other provisions of this Section 7.08, the Primary Liquidity Provider may assign and pledge all or any portion of the Advances owing to it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided that any payment in respect of such assigned Advances made by the Borrower to the Primary Liquidity Provider in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect of such assigned Advance to the extent of such payment.  No such assignment shall release the Primary Liquidity Provider from its obligations hereunder.

 

Section 7.09                            Severability.  Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.

 

Section 7.10                            GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Section 7.11                            Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.

 

(a)                                  Each of the parties hereto hereby irrevocably and unconditionally:

 

(i)                                     submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in respect hereof or thereof, to the non-exclusive general jurisdiction of the courts of the State of New York sitting in the City of New York, the courts of the United States of America for the Southern District of New York, and the appellate courts from any thereof;

 

(ii)                                  consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(iii)                               agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to each party hereto at its address set forth in Section 7.02, or at such other address of which the Primary Liquidity Provider shall have been notified pursuant thereto; and

 

27



 

(iv)                              agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

 

(b)                                 THE BORROWER AND THE PRIMARY LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law and statutory claims.  The Borrower and the Primary Liquidity Provider each warrant and represent that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with such legal counsel.  THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

 

(c)                                  The Primary Liquidity Provider hereby waives any immunity it may have from the jurisdiction of the courts of the United States or of any State and waives any immunity any of its properties located in the United States may have from attachment or execution upon a judgment entered by any such court under the United States Foreign Sovereign Immunities Act of 1976 or any similar successor legislation.

 

Section 7.12                            Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.

 

Section 7.13                            Entirety.  This Agreement and the other Operative Agreements constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements of such parties.

 

Section 7.14                            Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

Section 7.15                            PRIMARY LIQUIDITY PROVIDER’S OBLIGATION TO MAKE ADVANCES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE PRIMARY LIQUIDITY PROVIDER TO MAKE ADVANCES HEREUNDER, AND THE BORROWER’S RIGHTS TO DELIVER NOTICES OF BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

 

Section 7.16                            Transfer.  The Primary Liquidity Provider hereby acknowledges and consents to the Transfer contemplated by the Assignment and Assumption Agreement.

 

28



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first set forth above.

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent and Trustee, as
Borrower

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

 

Title: Vice President

 

 

 

LANDESBANK BADEN-
WÜRTTEMBERG
,

 

as Primary Liquidity Provider

 

 

 

By:

 /s/ Dr. Hans-Matthias Neugebauer

 

 

Name: Dr. Hans-Matthias Neugebauer

 

 

Title: SVP

 

 

 

By:

 /s/ Jeannine Eder

 

 

Name: Jeannine Eder

 

 

Title: VP

 

29



 

ANNEX I TO
REVOLVING CREDIT AGREEMENT

 

INTEREST ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)                                  The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)                                  The Borrower is delivering this Notice of Borrowing for the making of an Interest Advance by the Primary Liquidity Provider to be used, subject to clause(3)(v) below, for the payment of Adjusted Interest on the Class C Certificates which was payable on                                    (the “Distribution Date”) in accordance with the terms and provisions of the Class C Trust Agreement and the Class C Certificates, which Advance is requested to be made on                               .  The Interest Advance should be transferred to account                   .

 

(3)                                  The amount of the Interest Advance requested hereby (i) is $                 , to be applied in respect of the payment of Adjusted Interest which was due and payable on the Class C Certificates on such Distribution Date, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class G-2 Certificates, (iii) was computed in accordance with the provisions of the Class C Certificates, the Class C Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), (iv) does not exceed the Maximum Available Commitment on the date hereof, (v) does not include any amount of interest which was due and payable on the Class C Certificates on such Distribution Date but which remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date, and (vi) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)                                  Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall apply the same in accordance with the terms of Section 3.6(b) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

1



 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, the making of the Interest Advance as requested by this Notice of Borrowing shall automatically reduce, subject to reinstatement in accordance with the terms of the Liquidity Agreement, the Maximum Available Commitment by an amount equal to the amount of the Interest Advance requested to be made hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing and such reduction shall automatically result in corresponding reductions in the amounts available to be borrowed pursuant to a subsequent Advance.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the          day of                         ,           .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO
INTEREST ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with Interest Advance Notice of Borrowing]

 

4



 

ANNEX II TO
REVOLVING CREDIT AGREEMENT

 

NON-EXTENSION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)                                  The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)                                  The Borrower is delivering this Notice of Borrowing for the making of the Non-Extension Advance by the Primary Liquidity Provider to be used for the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, which Advance is requested to be made on                     ,          .  The Non-Extension Advance should be transferred to                       .

 

(3)                                  The amount of the Non-Extension Advance requested hereby (i) is $                       .    , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(d) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of the principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class G-2 Certificates, (iii) was computed in accordance with the provisions of the Class C Certificates, the Class C Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)                                  Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower will deposit such amount in the Class C Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(d) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Non-Extension Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

1



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the          day of                    ,         .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

2



 

SCHEDULE I TO NON-EXTENSION ADVANCE

 

NOTICE OF BORROWING

[Insert copy of computations in accordance with
Non-Extension Advance Notice of Borrowing]

 

3



 

ANNEX III TO
REVOLVING CREDIT AGREEMENT

 

DOWNGRADE ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)                                  The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)                                  The Borrower is delivering this Notice of Borrowing for the making of the Downgrade Advance by the Primary Liquidity Provider to be used for the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement by reason of the downgrading of the relevant rating of the Primary Liquidity Provider issued by either Rating Agency below the Threshold Rating, which Advance is requested to be made on                         .  The Downgrade Advance should be transferred to                      .

 

(3)                                  The amount of the Downgrade Advance requested hereby (i) is $            , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(c) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on, the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates or interest on the Class G-1 Certificates or the Class G-2 Certificates, (iii) was computed in accordance with the provisions of the Class C Certificates, the Class C Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing under the Liquidity Agreement.

 

(4)                                  Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class C Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(c) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Downgrade Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary

 

1



 

Liquidity Provider of the Downgrade Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the            day of                  ,           .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO
DOWNGRADE ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Downgrade Advance Notice of Borrowing]

 

4



 

ANNEX IV TO
REVOLVING CREDIT AGREEMENT

 

FINAL ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)                                  The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)                                  The Borrower is delivering this Notice of Borrowing for the making of the Final Advance by the Primary Liquidity Provider to be used for the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Termination Notice from the Primary Liquidity Provider with respect to the Liquidity Agreement, which Advance is requested to be made on                       .

 

(3)                                  The amount of the Final Advance requested hereby (i) is $                      , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(i) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class G-2 Certificates, (iii) was computed in accordance with the provisions of the Class C Certificates, the Class C Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)                                  Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class C Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(i) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

(5)                                  The Borrower hereby requests that the Advance requested hereby be a Base Rate Advance and that such Base Rate Advance be converted into a LIBOR Advance on the third London/Stuttgart Business Day following your receipt of this notice.

 

The Borrower hereby acknowledges that, pursuant to the Liquidity Agreement, (A) the making of the Final Advance as requested by this Notice of Borrowing shall automatically and

 

1



 

irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Final Advance requested by this Notice of Borrowing, the Borrower shall not be entitled to request any further Advances under the Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the           day of                       ,        .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Final Advance Notice of Borrowing]

 

4



 

ANNEX V TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF TERMINATION

 

[Date]

 

Wilmington Trust Company

Rodney Square North

1100 North Market Square

Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2C Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(a) of the Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default and the existence of a Performing Note Deficiency (each as defined therein), we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF TERMINATION” PROVIDED FOR UNDER THE LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

 

 

LANDESBANK BADEN-
WÜRTTEMBERG
,

 

as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

cc:

Wilmington Trust Company, as Trustee

 

 

 

2



 

ANNEX VI TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF REPLACEMENT SUBORDINATION AGENT

 

[Date]

 

Attention:

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2C Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Liquidity Agreement”)

 

Ladies and Gentlemen:

 

For value received, the undersigned hereby irrevocably transfers to:

 

 

 

 

[Name of Transferee]

 

 

 

 

 

[Address of Transferee]

 

all rights and obligations of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement referred to above.  The transferee has succeeded the undersigned as Borrower and Subordination Agent under the Intercreditor Agreement referred to in the first paragraph of the Liquidity Agreement, pursuant to the terms of Section 8.1 of the Intercreditor Agreement.

 

By this transfer, all rights of the undersigned as Borrower and Subordination Agent under the Liquidity Agreement are transferred to the transferee and the transferee shall hereafter have the sole rights and obligations as Borrower and Subordination Agent thereunder.  The undersigned shall pay any costs and expenses of such transfer, including, but not limited to, transfer taxes or governmental charges.

 

We ask that this transfer be effective as of                       ,       .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

1



 

ANNEX VII TO
REVOLVING CREDIT AGREEMENT

 

SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

The undersigned, a duly authorized signatory of the undersigned borrower (the “Borrower”), hereby certifies to Landesbank Baden-Württemberg (the “Primary Liquidity Provider”), with reference to the Revolving Credit Agreement, dated as of November 15, 2004, between the Borrower and the Primary Liquidity Provider (the “Primary Liquidity Agreement”); the terms defined therein and not otherwise defined herein being used herein as therein defined or referenced), that:

 

(1)                                  The Borrower is the Subordination Agent under the Intercreditor Agreement.

 

(2)                                  The Borrower is delivering this Notice of Borrowing for the making of the Special Termination Advance by the Primary Liquidity Provider to be used for the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement by reason of the receipt by the Borrower of a Special Termination Notice from the Primary Liquidity Provider with respect to the Primary Liquidity Agreement, which Advance is requested to be made on                          .

 

(3)                                  The amount of the Special Termination Advance requested hereby (i) is $                         , which equals the Maximum Available Commitment on the date hereof and is to be applied in respect of the funding of the Class C Primary Cash Collateral Account in accordance with Section 3.6(k) of the Intercreditor Agreement, (ii) does not include any amount with respect to the payment of principal of, or premium on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates, or interest on the Class G-1 Certificates or the Class G-2 Certificates, (iii) was computed in accordance with the provisions of the Class C Certificates, the Class C Trust Agreement and the Intercreditor Agreement (a copy of which computation is attached hereto as Schedule I), and (iv) has not been and is not the subject of a prior or contemporaneous Notice of Borrowing.

 

(4)                                  Upon receipt by or on behalf of the Borrower of the amount requested hereby, (a) the Borrower shall deposit such amount in the Class C Primary Cash Collateral Account and apply the same in accordance with the terms of Section 3.6(k) of the Intercreditor Agreement, (b) no portion of such amount shall be applied by the Borrower for any other purpose and (c) no portion of such amount until so applied shall be commingled with other funds held by the Borrower.

 

The Borrower hereby acknowledges that, pursuant to the Primary Liquidity Agreement, (A) the making of the Special Termination Advance as requested by this Notice of Borrowing shall automatically and irrevocably terminate the obligation of the Primary Liquidity Provider to make further Advances under the Primary Liquidity Agreement; and (B) following the making by the Primary Liquidity Provider of the Special Termination Advance requested by this Notice

 

1



 

of Borrowing, the Borrower shall not be entitled to request any further Advances under the Primary Liquidity Agreement.

 

2



 

IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of Borrowing as of the           day of                     ,        .

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity but solely as
Subordination Agent, as Borrower

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

3



 

SCHEDULE I TO SPECIAL TERMINATION ADVANCE NOTICE OF BORROWING

 

[Insert Copy of Computations in accordance with
Special Termination Advance Notice of Borrowing]

 

4



 

ANNEX VIII TO
REVOLVING CREDIT AGREEMENT

 

NOTICE OF SPECIAL TERMINATION

 

[Date]

 

Wilmington Trust Company

Rodney Square North

1100 North Market Square

Wilmington, DE  19890-0001

 

Attention:  Corporate Trust Administration

 

Re:                               Revolving Credit Agreement, dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2C Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg (the “Primary Liquidity Agreement”)

 

Ladies and Gentlemen:

 

You are hereby notified that pursuant to Section 6.01(b) of the Primary Liquidity Agreement, by reason of an Indenture Event of Default arising out of a payment default on a Series C Equipment Note having occurred under an Indenture and such Indenture Event of Default not having been cured in full by the earlier of (a) the end of the 36-month period beginning on the date of such Indenture Event of Default and (b) October 15, 2008, we are giving this notice to you in order to cause (i) our obligations to make Advances (as defined therein) under such Primary Liquidity Agreement to terminate on the fifth Business Day after the date on which you receive this notice and (ii) you to request a Special Termination Advance under the Primary Liquidity Agreement pursuant to Section 3.6(k) of the Intercreditor Agreement (as defined in the Primary Liquidity Agreement) as a consequence of your receipt of this notice.

 

1



 

THIS NOTICE IS THE “NOTICE OF SPECIAL TERMINATION” PROVIDED FOR UNDER THE PRIMARY LIQUIDITY AGREEMENT.  OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE PRIMARY LIQUIDITY AGREEMENT SHALL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE THIS NOTICE.

 

 

Very truly yours,

 

 

 

 

 

LANDESBANK BADEN-
WÜRTTEMBERG
,

 

as Primary Liquidity Provider

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

cc:

Wilmington Trust Company, as Trustee

 

 

 

2


EX-4.8 10 a04-11378_4ex4d8.htm EX-4.8

Exhibit 4.8

 

EXECUTION COPY

 

 

DEPOSIT AGREEMENT

(CLASS G-1)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY

as Escrow Agent

 

and

 

HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH

as Depositary

 

 



 

DEPOSIT AGREEMENT (Class G-1) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, this “Agreement”) between WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow and Paying Agent Agreement referred to below (in such capacity, together with its successors in such capacity, the “Escrow Agent”), and HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH, a New York State licensed branch office of a bank organized under the laws of Germany, as depositary bank hereunder (the “Depositary”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and Wilmington Trust Company, not in its individual capacity except as otherwise expressly provided therein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) have entered into a Pass Through Trust Agreement dated as of November 15, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2G-1-O pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2G-1-O Certificates referred to therein (the “Certificates”) are being issued (the date of such issuance, the “Issuance Date”);

 

WHEREAS, JetBlue and Morgan Stanley & Co., Incorporated, J.P. Morgan Securities Inc., Citigroup Global Markets Inc., and HSBC Securities (USA) Inc. (collectively, the “Underwriters” and, together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) have entered into an Underwriting Agreement dated November 9, 2004 pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) the Series G-1 equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in such capacity, together with its successors in such capacity, the “Paying Agent”) concurrently herewith are entering into an Escrow and Paying Agent Agreement (Class G-1), dated as of the date hereof (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Escrow and Paying Agent Agreement”); and

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon request of and proper certification by the Pass Through Trustee for the purpose of purchasing Equipment Notes, and

 



 

that pending such withdrawal the Net Proceeds be deposited by the Escrow Agent with the Depositary pursuant to this Agreement, which provides for the Depositary to pay interest for distribution to the Investors and to establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.                                          Definitions.  Capitalized terms used but not defined herein shall have the following meanings:

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to close in New York, New York or the city in which the Corporate Trust Office is maintained.

 

Debt Rate” means, for each Interest Period, a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period and (y) 0.375% per annum.

 

Interest Payment Date” means each February 15, May 15, August 15 and November 15, commencing on February 15, 2005; provided, that if any such date is not a Business Day, the relevant Interest Payment Date shall be the next succeeding Business Day.

 

Interest Period” means the period commencing on and including the Deposit Date and ending on but excluding the next succeeding Interest Payment Date, and thereafter, each successive period commencing on and including the immediately preceding Interest Payment Date and ending on but excluding the next succeeding Interest Payment Date.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Three-Month LIBOR” means, (i) with respect to the initial Interest Period, 2.29%, and (ii) for each subsequent Interest Period, the interest rate per annum (calculated on the basis of a 360-day year and actual days elapsed) at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association-LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee (as defined in the Note Purchase Agreement), of such rates as indicated on the Reuters LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee, of such rates offered by four major reference banks in the London interbank market, as selected by the Loan Trustee after consultation with JetBlue, to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the day that is two LIBOR Business Days prior to the first day of such Interest Period (the “Three-Month LIBOR Reference Date”) for deposits for a period of three months in an amount substantially equal to the principal amount of Deposits then outstanding. The

 

2



 

Escrow Agent will, if necessary, request that each of the reference banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded to the nearest 1/100 %).  If fewer than two quotations are provided, Three-Month LIBOR will be determined for the applicable Three-Month LIBOR Reference Date as the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York time, on that Three-Month LIBOR Reference Date, by three major banks in New York City, as selected by the Loan Trustee after consultation with JetBlue, for loans in U.S. dollars to leading European banks, for a period of three months, commencing on that Three-Month LIBOR Reference Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time.  If the banks so selected by the Loan Trustee are not quoting as mentioned above, the rate will be Three-Month LIBOR for the immediately preceding Interest Period.  Notwithstanding the foregoing, if a payment default on any Equipment Note (as defined in the Note Purchase Agreement) exists on any Regular Distribution Date (as defined in the Note Purchase Agreement), Three-Month LIBOR will not exceed 7%; provided that the Loan Trustee shall also calculate the rate for such Interest Period without giving effect to the 7% limitation; and provided further that, if all the then continuing payment defaults on all of the Equipment Notes (as defined in the Note Purchase Agreement) are cured during such Interest Period, Three-Month LIBOR shall revert to the rate calculated for such Interest Period without giving effect to the 7% limitation and shall apply for the entire Interest Period.

 

Section 2.                                          Terms of Deposit.

 

2.1                                 Acceptance of Depositary.  The Depositary hereby agrees to act as depositary bank as provided herein and in connection therewith to accept all amounts to be delivered to or held by the Depositary pursuant to the terms of this Agreement.  The Depositary further agrees to hold, maintain and safeguard the Deposits and the Accounts (as defined below) during the term of this Agreement in accordance with the provisions of this Agreement.  The Depositary shall neither be responsible for or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document executed between and among the parties hereto.  This Agreement sets forth all of the obligations of the Depositary, and no additional obligations shall be implied from the terms of this Agreement or any other agreement, instrument or document.  The Escrow Agent shall not have any right to withdraw, assign or otherwise transfer moneys held in the Accounts except as permitted by this Agreement.

 

2.2                                 Establishment of Accounts.  The Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to establish the separate deposit accounts listed on Schedule I hereto and to establish such additional separate deposit accounts as may be required in connection with the deposits contemplated by Section 2.6 hereof (each, an “Account” and collectively, the “Accounts”), each in the name of the Escrow Agent and all on the terms and conditions set forth in this Agreement.  It is the express intention of the parties hereto that all amounts on deposit hereunder be deemed to be general deposits, not special deposits, and that such deposits create a customer and bank relationship between the Escrow Agent and Depository.

 

2.3                                 Deposits.  The Escrow Agent shall direct the Underwriters to deposit with the Depositary on the date of this Agreement (the “Deposit Date”) in Federal (same day) funds by

 

3



 

wire transfer to the account of JP Morgan Chase, ABA: 021000021, for credit to HSH Nordbank NY branch, Account Number: 400949687, for further credit to Wilmington Trust Company, Account Number: 7990116721-04, ref: JetBlue EETC 2004-2 G1, and the Depositary shall accept from the Underwriters, on behalf of the Escrow Agent, the sum of US$176,753,000.  Upon acceptance of such sum, the Depositary shall (i) establish each of the deposits specified in Schedule I hereto maturing on June 30, 2006 (including any deposit made pursuant to Section 2.6 hereof, individually, a “Deposit” and, collectively, the “Deposits”) and (ii) credit each Deposit to the related Account as set forth therein.  No amount shall be deposited in any Account other than the related Deposit.

 

2.4                                 Interest.  Each Deposit shall bear interest from and including the date of deposit to but excluding the date of withdrawal at the rate per annum for each Interest Period equal to the Debt Rate for such Interest Period (computed on the basis of a year of 360 days and actual days elapsed) payable to the Paying Agent on behalf of the Escrow Agent quarterly in arrears on each Interest Payment Date and, as provided in Section 2.5(b) hereof, on the date of the Final Withdrawal (as defined below), all in accordance with the terms of this Agreement (whether or not any such Deposit is withdrawn on an Interest Payment Date).  Interest accrued on any Deposit that is withdrawn pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid on the next Interest Payment Date, notwithstanding any intervening Final Withdrawal (as defined below).  In addition, interest accrued on any Deposit that is withdrawn pursuant to a Notice of Replacement Withdrawal (as defined below) but not paid on the date of the Final Withdrawal shall be paid on the next Interest Payment Date.

 

2.5                                 Withdrawals.  (a)  On and after the date seven days after the establishment of any Deposit, the Escrow Agent may, by providing a notice of withdrawal to the Depositary by 10:00 a.m. (New York City time) on a Business Day that is at least seven days prior to the date of such requested withdrawal in the form of Exhibit A hereto (a “Notice of Purchase Withdrawal”), withdraw at any time while funds may be transferred in the Fed Wire electronic transfer system not less than the entire principal balance of such Deposit as set forth on Schedule I, except that at any time prior to the actual withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee may, by written notice to the Depositary, cancel such withdrawal (including on the scheduled date therefor), and thereafter such Deposit shall continue to be maintained by the Depositary in accordance with the original terms thereof.  Following such withdrawal the balance in the related Account shall be zero and the Depositary shall, without limiting or otherwise affecting the Depositary’s payment obligation pursuant to the penultimate sentence of Section 2.4 hereof, close such Account.

 

(b)                                 (i)  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit B hereto (a “Notice of Final Withdrawal”), withdraw the entire amount of all of the remaining Deposits together with the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Final Withdrawal”), on such date as shall be specified in such Notice of Final Withdrawal.  If a Notice of Final Withdrawal has not been given to the Depositary on or before June 5, 2006 and there are unwithdrawn Deposits on such date, the Depositary shall pay the amount of the Final Withdrawal to the Paying Agent on June 30, 2006.

 

4



 

(ii)                                  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice of Replacement Withdrawal”), withdraw the entire amount of all Deposits then held by the Depositary together with, if specified in such Notice of Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Replacement Withdrawal”), on such date as shall be specified in such Notice of Replacement Withdrawal.

 

(c)                                  If the Depositary receives a duly completed Notice of Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal Notice”) complying with the provisions of this Agreement, it shall make the payments specified therein in accordance with the provisions of this Agreement.

 

If such complying Withdrawal Notice is received by the Depositary no later than 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the next succeeding Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.  If such complying Withdrawal Notice is received by the Depositary after 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the second Business Day next following such Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.

 

2.6                                 Other Accounts.  On the date of withdrawal of any Deposit pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit with the Depositary any portion thereof and the Depositary shall accept the same for deposit hereunder.  Any sums so received for deposit shall be established as a new Deposit and credited to a new Account, all as more fully provided in Section 2.3 hereof, and thereafter the provisions of this Agreement shall apply thereto as fully and with the same force and effect as if such Deposit had been established on the Deposit Date except that (i) such Deposit may not be withdrawn prior to the date seven days after the establishment thereof and (ii) such Deposit shall mature on June 30, 2006 and bear interest as provided in Section 2.4.  The Depositary shall promptly give notice to the Escrow Agent of receipt of each such re-deposit and the account number assigned thereto.

 

Section 3.                                          Termination.  This Agreement shall terminate on the fifth Business Day after the later of the date on which (i) all of the Deposits shall have been withdrawn and paid as provided herein without any re-deposit of such funds and (ii) all accrued and unpaid interest on the Deposits shall have been paid as provided herein, but in no event prior to the date on which the Depositary shall have performed in full its obligations hereunder.  For the avoidance of doubt, the obligations of the Depositary under the last two sentences of Section 2.4 hereof shall remain in full force and effect notwithstanding the execution and delivery of a replacement Deposit Agreement in accordance with Section 4(a)(v) of the Note Purchase Agreement.

 

5



 

Section 4.                                          Payments.  All payments (including, without limitation, those payments made in respect of Taxes (as defined and provided for below)) made by the Depositary hereunder shall be paid in United States Dollars and immediately available funds by wire transfer (i) in the case of accrued interest on the Deposits payable under Section 2.4 hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington Trust Company, Wilmington, Delaware, ABA# 031100092, for credit to the account of JetBlue 2004-2, Account No. 068198-000, Attention:  Monica Henry, Telephone No. (302) 636-6296, Reference:  JetBlue 2004-2 G-1, or to such other account as the Paying Agent may direct from time to time in writing to the Depositary and the Escrow Agent and (ii) in the case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase Withdrawal or Notice of Replacement Withdrawal, directly to or as directed by the Pass Through Trustee as specified and in the manner provided in such Notice of Purchase Withdrawal or Notice of Replacement Withdrawal.  The Depositary hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against the Deposits howsoever arising.  Except as expressly provided below, all payments on or in respect of each Deposit shall be made free and clear of and without reduction for or on account of any and all taxes, levies or other impositions or charges (collectively, “Taxes”).  However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of the Escrow and Paying Agent Agreement) shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder, the Depositary shall (i) make such deductions or withholding and (ii) pay the full amount deducted or withheld (including in respect of such additional amounts) to the competent taxation authority.

 

Section 5.                                          Representation and Warranties.  The Depositary hereby represents and warrants to JetBlue, the Escrow Agent, the Pass Through Trustee, the Underwriters and the Paying Agent that:

 

(1)                                  it is a New York licensed branch office of a German bank duly organized and existing under the laws of Germany and is duly qualified to conduct banking business in the State of New York through its New York branch;

 

(2)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(3)                                  the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof;

 

(4)                                  no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

6



 

(5)                                  neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, (A) conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or (B) results or will result in a material breach or violation of any of the terms, conditions or provisions of any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(6)                                  there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (i) would adversely affect the ability of it to perform its obligations under this Agreement or (ii) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Depositary in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 6.                                          Transfer.  Neither party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under the Escrow and Paying Agent Agreement, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent) permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights of the “Pass Through Trustee” hereunder, and each reference herein to “JetBlue Airways Pass Through Trust 2004-2G-1-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2G-1-S”.  The Escrow Agent and the Depositary hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  For the purposes of this Section 6, “Transfer” means the transfer contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; and “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-1-S.

 

Section 7.                                          Amendment, Etc.  This Agreement may not be amended, waived or otherwise modified except by an instrument in writing signed by the parties hereto.

 

7



 

Section 8.                                          Notices.

 

(a)                                  Unless otherwise expressly provided herein, any notice, instruction or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received after normal business hours, the next open of business on a Business Day).  All notices shall be sent to (x) in the case of the Depositary, HSH Nordbank AG, New York Branch, 590 Madison Ave., New York, New York 10022-2540, Attention:  Transportation-Americas (Telecopier: (212) 407-6033) or (y) in the case of the Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882), in each case, with a copy to the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882) and to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  Vice President – Corporate Finance (Telecopier:  (718) 709-3639) with a copy to JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  General Counsel (Telecopier:  (718) 709-3631) (or at such other address as any such party may specify from time to time in a written notice to the parties hereto).  On or prior to the execution of this Agreement, the Escrow Agent has delivered to the Depositary an incumbency certificate containing specimen signatures of the representatives of the Escrow Agent who are authorized to give notices and instructions with respect to this Agreement.  The Depositary may conclusively rely on such certificate until the Depositary receives written notice from the Escrow Agent to the contrary.

 

(b)                                 The Depositary shall be fully protected and authorized in relying upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any party without being required to make any investigation or inquiry thereof to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order.  The Depositary may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so.  The Depositary shall not be deemed to have any duty or notice unless and until it has been provided with written notice.  In no event shall the Depositary be liable for indirect, special or consequential damages.

 

Section 9.                                          Obligations Unconditional.  The Depositary hereby acknowledges and agrees that its obligation to repay each Deposit together with interest thereon as provided herein is absolute, irrevocable and unconditional and constitutes a full recourse obligation of the Depositary enforceable against it to the full extent of all of its assets and properties.

 

Section 10.                                   Entire Agreement.  This Agreement (including all attachments hereto) sets forth all of the promises, covenants, agreements, conditions and understandings between the Depositary and the Escrow Agent with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 11.                                   Governing Law.  This Agreement, and the rights and obligations of the Depositary and the Escrow Agent with respect to the Deposits, shall be governed by, and

 

8



 

construed in accordance with, the law of the State of New York and subject to the provisions of Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

 

Section 12.                                   Waiver of Jury Trial RightEACH OF THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 13.                                   Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*     *     *

 

9



 

IN WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit Agreement to be duly executed as of the day and year first above written.

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

 

Title: Vice President

 

 

 

 

 

HSH NORDBANK AG, ACTING
THROUGH ITS NEW YORK BRANCH
,

 

as Depositary

 

 

 

 

 

By:

 /s/ Jack Campbell

 

 

Name: Jack Campbell

 

 

Title: Senior Vice President

 

 

 

 

 

By:

 /s/ Mikal Sanne

 

 

Name: Mikal Sanne

 

 

Title: AVP

 

10



 

SCHEDULE I

 

SCHEDULE OF DEPOSITS

(CLASS G-1)

 

Aircraft Registration Number

 

Amount

 

Sub-Account

 

N603JB

 

11,778,098.70

 

N603JB

 

N605JB

 

11,803,465.93

 

N605JB

 

N606JB

 

11,803,815.33

 

N606JB

 

N607JB

 

11,829,185.33

 

N607JB

 

N608JB

 

11,856,246.67

 

N608JB

 

N612JB

 

11,882,462.33

 

N612JB

 

N613JB

 

11,907,832.33

 

N613JB

 

N615JB

 

11,907,832.33

 

N615JB

 

N618JB

 

11,901,067.00

 

N618JB

 

N621JB

 

11,901,067.00

 

N621JB

 

N623JB

 

11,927,113.53

 

N623JB

 

N624JB

 

11,927,113.53

 

N624JB

 

N625JB

 

11,426,433.33

 

N625JB

 

N627JB

 

11,450,633.33

 

N627JB

 

N629JB

 

11,450,633.33

 

N629JB

 

 

1



 

EXHIBIT A

 

NOTICE OF PURCHASE WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier: (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-1) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $                       , Account No.                     .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [              , Account No.               , Reference:                        ] on               , 200  , upon the telephonic request of a representative of Wilmington Trust Company, the Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  

 

 

1



 

EXHIBIT B

 

NOTICE OF FINAL WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-1) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(b) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on                      , 200  .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits [and accrued interest thereon] to the Paying Agent at                      , ABA#                      , Account No.                      , Reference:                       .

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  .

 

 

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EXHIBIT C

 

NOTICE OF REPLACEMENT WITHDRAWAL

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-1) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Deposit”).

 

In accordance with Section 2.5(b)(ii) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on                          , 20   .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits to [                         ] at                          , ABA#                            , Account No.                          , Reference:                            [and to pay accrued interest thereon to the Paying Agent at                          , ABA #                          , Acct. No.                          , Reference:                           ](1).  [The undersigned further directs the Depositary to pay the accrued interest on the Deposits to the Paying Agent on                          ,     (the next Interest Payment Date) at ABA #                          , Account No.                          , Reference:                           ](2)

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  

 

 


(1)          To be deleted in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

(2)          To be inserted only in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

1


EX-4.9 11 a04-11378_4ex4d9.htm EX-4.9

Exhibit 4.9

 

EXECUTION COPY

 

 

DEPOSIT AGREEMENT

(CLASS G-2)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY

as Escrow Agent

 

and

 

HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH

as Depositary

 

 



 

DEPOSIT AGREEMENT (Class G-2) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, this “Agreement”) between WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow and Paying Agent Agreement referred to below (in such capacity, together with its successors in such capacity, the “Escrow Agent”), and HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH, a New York State licensed branch office of a bank organized under the laws of Germany, as depositary bank hereunder (the “Depositary”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and Wilmington Trust Company, not in its individual capacity except as otherwise expressly provided therein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) have entered into a Pass Through Trust Agreement dated as of November 15, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2G-2-O pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O Certificates referred to therein (the “Certificates”) are being issued (the date of such issuance, the “Issuance Date”);

 

WHEREAS, JetBlue and Morgan Stanley & Co., Incorporated, J.P. Morgan Securities Inc., Citigroup Global Markets Inc., and HSBC Securities (USA) Inc. (collectively, the “Underwriters” and, together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) have entered into an Underwriting Agreement dated November 9, 2004 pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) the Series G-2 equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in such capacity, together with its successors in such capacity, the “Paying Agent”) concurrently herewith are entering into an Escrow and Paying Agent Agreement (Class G-2), dated as of the date hereof (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Escrow and Paying Agent Agreement”); and

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon request of and proper certification by the Pass Through Trustee for the purpose of purchasing Equipment Notes, and

 



 

that pending such withdrawal the Net Proceeds be deposited by the Escrow Agent with the Depositary pursuant to this Agreement, which provides for the Depositary to pay interest for distribution to the Investors and to establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.                                          Definitions.  Capitalized terms used but not defined herein shall have the following meanings:

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to close in New York, New York or the city in which the Corporate Trust Office is maintained.

 

Debt Rate” means, for each Interest Period, a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period and (y) 0.450% per annum.

 

Interest Payment Date” means each February 15, May 15, August 15 and November 15, commencing on February 15, 2005; provided, that if any such date is not a Business Day, the relevant Interest Payment Date shall be the next succeeding Business Day.

 

Interest Period” means the period commencing on and including the Deposit Date and ending on but excluding the next succeeding Interest Payment Date, and thereafter, each successive period commencing on and including the immediately preceding Interest Payment Date and ending on but excluding the next succeeding Interest Payment Date.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Three-Month LIBOR” means, (i) with respect to the initial Interest Period, 2.29%, and (ii) for each subsequent Interest Period, the interest rate per annum (calculated on the basis of a 360-day year and actual days elapsed) at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association-LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee (as defined in the Note Purchase Agreement), of such rates as indicated on the Reuters LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee, of such rates offered by four major reference banks in the London interbank market, as selected by the Loan Trustee after consultation with JetBlue, to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the day that is two LIBOR Business Days prior to the first day of such Interest Period (the “Three-Month LIBOR Reference Date”) for deposits for a period of three months in an amount substantially equal to the principal amount of Deposits then outstanding. The

 

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Escrow Agent will, if necessary, request that each of the reference banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded to the nearest 1/100 %).  If fewer than two quotations are provided, Three-Month LIBOR will be determined for the applicable Three-Month LIBOR Reference Date as the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York time, on that Three-Month LIBOR Reference Date, by three major banks in New York City, as selected by the Loan Trustee after consultation with JetBlue, for loans in U.S. dollars to leading European banks, for a period of three months, commencing on that Three-Month LIBOR Reference Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time.  If the banks so selected by the Loan Trustee are not quoting as mentioned above, the rate will be Three-Month LIBOR for the immediately preceding Interest Period.  Notwithstanding the foregoing, if a payment default on any Equipment Note (as defined in the Note Purchase Agreement) exists on any Regular Distribution Date (as defined in the Note Purchase Agreement), Three-Month LIBOR will not exceed 7%; provided that the Loan Trustee shall also calculate the rate for such Interest Period without giving effect to the 7% limitation; and provided further that, if all the then continuing payment defaults on all of the Equipment Notes (as defined in the Note Purchase Agreement) are cured during such Interest Period, Three-Month LIBOR shall revert to the rate calculated for such Interest Period without giving effect to the 7% limitation and shall apply for the entire Interest Period.

 

Section 2.                                          Terms of Deposit.

 

2.1                                 Acceptance of Depositary.  The Depositary hereby agrees to act as depositary bank as provided herein and in connection therewith to accept all amounts to be delivered to or held by the Depositary pursuant to the terms of this Agreement.  The Depositary further agrees to hold, maintain and safeguard the Deposits and the Accounts (as defined below) during the term of this Agreement in accordance with the provisions of this Agreement.  The Depositary shall neither be responsible for or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document executed between and among the parties hereto.  This Agreement sets forth all of the obligations of the Depositary, and no additional obligations shall be implied from the terms of this Agreement or any other agreement, instrument or document.  The Escrow Agent shall not have any right to withdraw, assign or otherwise transfer moneys held in the Accounts except as permitted by this Agreement.

 

2.2                                 Establishment of Accounts.  The Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to establish the separate deposit accounts listed on Schedule I hereto and to establish such additional separate deposit accounts as may be required in connection with the deposits contemplated by Section 2.6 hereof (each, an “Account” and collectively, the “Accounts”), each in the name of the Escrow Agent and all on the terms and conditions set forth in this Agreement.  It is the express intention of the parties hereto that all amounts on deposit hereunder be deemed to be general deposits, not special deposits, and that such deposits create a customer and bank relationship between the Escrow Agent and Depository.

 

2.3                                 Deposits.  The Escrow Agent shall direct the Underwriters to deposit with the Depositary on the date of this Agreement (the “Deposit Date”) in Federal (same day) funds by

 

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wire transfer to the account of JP Morgan Chase, ABA: 021000021, for credit to HSH Nordbank NY Branch, Account Number: 400949687, for further credit to Wilmington Trust Company, Account Number: 7990116721-05, ref: JetBlue EETC 2004-2 G2, and the Depositary shall accept from the Underwriters, on behalf of the Escrow Agent, the sum of US$185,418,000.  Upon acceptance of such sum, the Depositary shall (i) establish each of the deposits specified in Schedule I hereto maturing on June 30, 2006 (including any deposit made pursuant to Section 2.6 hereof, individually, a “Deposit” and, collectively, the “Deposits”) and (ii) credit each Deposit to the related Account as set forth therein.  No amount shall be deposited in any Account other than the related Deposit.

 

2.4                                 Interest.  Each Deposit shall bear interest from and including the date of deposit to but excluding the date of withdrawal at the rate per annum for each Interest Period equal to the Debt Rate for such Interest Period (computed on the basis of a year of 360 days and actual days elapsed) payable to the Paying Agent on behalf of the Escrow Agent quarterly in arrears on each Interest Payment Date and, as provided in Section 2.5(b) hereof, on the date of the Final Withdrawal (as defined below), all in accordance with the terms of this Agreement (whether or not any such Deposit is withdrawn on an Interest Payment Date).  Interest accrued on any Deposit that is withdrawn pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid on the next Interest Payment Date, notwithstanding any intervening Final Withdrawal (as defined below).  In addition, interest accrued on any Deposit that is withdrawn pursuant to a Notice of Replacement Withdrawal (as defined below) but not paid on the date of the Final Withdrawal shall be paid on the next Interest Payment Date.

 

2.5                                 Withdrawals.  (a)  On and after the date seven days after the establishment of any Deposit, the Escrow Agent may, by providing a notice of withdrawal to the Depositary by 10:00 a.m. (New York City time) on a Business Day that is at least seven days prior to the date of such requested withdrawal in the form of Exhibit A hereto (a “Notice of Purchase Withdrawal”), withdraw at any time while funds may be transferred in the Fed Wire electronic transfer system not less than the entire principal balance of such Deposit as set forth on Schedule I, except that at any time prior to the actual withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee may, by written notice to the Depositary, cancel such withdrawal (including on the scheduled date therefor), and thereafter such Deposit shall continue to be maintained by the Depositary in accordance with the original terms thereof.  Following such withdrawal the balance in the related Account shall be zero and the Depositary shall, without limiting or otherwise affecting the Depositary’s payment obligation pursuant to the penultimate sentence of Section 2.4 hereof, close such Account. 

 

(b)                                 (i)  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit B hereto (a “Notice of Final Withdrawal”), withdraw the entire amount of all of the remaining Deposits together with the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Final Withdrawal”), on such date as shall be specified in such Notice of Final Withdrawal.  If a Notice of Final Withdrawal has not been given to the Depositary on or before June 5, 2006 and there are unwithdrawn Deposits on such date, the Depositary shall pay the amount of the Final Withdrawal to the Paying Agent on June 30, 2006.

 

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(ii)                                  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice of Replacement Withdrawal”), withdraw the entire amount of all Deposits then held by the Depositary together with, if specified in such Notice of Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Replacement Withdrawal”), on such date as shall be specified in such Notice of Replacement Withdrawal.

 

(c)                                  If the Depositary receives a duly completed Notice of Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal Notice”) complying with the provisions of this Agreement, it shall make the payments specified therein in accordance with the provisions of this Agreement.

 

If such complying Withdrawal Notice is received by the Depositary no later than 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the next succeeding Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.  If such complying Withdrawal Notice is received by the Depositary after 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the second Business Day next following such Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.

 

2.6                                 Other Accounts.  On the date of withdrawal of any Deposit pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit with the Depositary any portion thereof and the Depositary shall accept the same for deposit hereunder.  Any sums so received for deposit shall be established as a new Deposit and credited to a new Account, all as more fully provided in Section 2.3 hereof, and thereafter the provisions of this Agreement shall apply thereto as fully and with the same force and effect as if such Deposit had been established on the Deposit Date except that (i) such Deposit may not be withdrawn prior to the date seven days after the establishment thereof and (ii) such Deposit shall mature on June 30, 2006 and bear interest as provided in Section 2.4.  The Depositary shall promptly give notice to the Escrow Agent of receipt of each such re-deposit and the account number assigned thereto.

 

Section 3.                                          Termination.  This Agreement shall terminate on the fifth Business Day after the later of the date on which (i) all of the Deposits shall have been withdrawn and paid as provided herein without any re-deposit of such funds and (ii) all accrued and unpaid interest on the Deposits shall have been paid as provided herein, but in no event prior to the date on which the Depositary shall have performed in full its obligations hereunder.  For the avoidance of doubt, the obligations of the Depositary under the last two sentences of Section 2.4 hereof shall remain in full force and effect notwithstanding the execution and delivery of a replacement Deposit Agreement in accordance with Section 4(a)(v) of the Note Purchase Agreement.

 

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Section 4.                                          Payments.  All payments (including, without limitation, those payments made in respect of Taxes (as defined and provided for below)) made by the Depositary hereunder shall be paid in United States Dollars and immediately available funds by wire transfer (i) in the case of accrued interest on the Deposits payable under Section 2.4 hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington Trust Company, Wilmington, Delaware, ABA# 031100092, for credit to the account of JetBlue 2004-2, Account No. 068199-000, Attention:  Monica Henry, Telephone No. (302) 636-6296, Reference:  JetBlue 2004-2 G-2, or to such other account as the Paying Agent may direct from time to time in writing to the Depositary and the Escrow Agent and (ii) in the case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase Withdrawal or Notice of Replacement Withdrawal, directly to or as directed by the Pass Through Trustee as specified and in the manner provided in such Notice of Purchase Withdrawal or Notice of Replacement Withdrawal.  The Depositary hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against the Deposits howsoever arising.  Except as expressly provided below, all payments on or in respect of each Deposit shall be made free and clear of and without reduction for or on account of any and all taxes, levies or other impositions or charges (collectively, “Taxes”).  However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of the Escrow and Paying Agent Agreement) shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder, the Depositary shall (i) make such deductions or withholding and (ii) pay the full amount deducted or withheld (including in respect of such additional amounts) to the competent taxation authority. 

 

Section 5.                                          Representation and Warranties.  The Depositary hereby represents and warrants to JetBlue, the Escrow Agent, the Pass Through Trustee, the Underwriters and the Paying Agent that:

 

(1)                                  it is a New York licensed branch office of a German bank duly organized and existing under the laws of Germany and is duly qualified to conduct banking business in the State of New York through its New York branch;

 

(2)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(3)                                  the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof;

 

(4)                                  no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

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(5)                                  neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, (A) conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or (B) results or will result in a material breach or violation of any of the terms, conditions or provisions of any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(6)                                  there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (i) would adversely affect the ability of it to perform its obligations under this Agreement or (ii) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Depositary in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 6.                                          Transfer.  Neither party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under the Escrow and Paying Agent Agreement, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent) permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights of the “Pass Through Trustee” hereunder, and each reference herein to “JetBlue Airways Pass Through Trust 2004-2G-2-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2G-2-S”.  The Escrow Agent and the Depositary hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  For the purposes of this Section 6, “Transfer” means the transfer contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; and “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-2-S.

 

Section 7.                                          Amendment, Etc.  This Agreement may not be amended, waived or otherwise modified except by an instrument in writing signed by the parties hereto.

 

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Section 8.                                          Notices.

 

(a)                                  Unless otherwise expressly provided herein, any notice, instruction or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received after normal business hours, the next open of business on a Business Day).  All notices shall be sent to (x) in the case of the Depositary, HSH Nordbank AG, New York Branch, 590 Madison Ave., New York, New York 10022-2540, Attention:  Transportation-Americas (Telecopier: (212) 407-6033) or (y) in the case of the Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882), in each case, with a copy to the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882) and to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  Vice President – Corporate Finance (Telecopier:  (718) 709-3639) with a copy to JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  General Counsel (Telecopier:  (718) 709-3631) (or at such other address as any such party may specify from time to time in a written notice to the parties hereto).  On or prior to the execution of this Agreement, the Escrow Agent has delivered to the Depositary an incumbency certificate containing specimen signatures of the representatives of the Escrow Agent who are authorized to give notices and instructions with respect to this Agreement.  The Depositary may conclusively rely on such certificate until the Depositary receives written notice from the Escrow Agent to the contrary.

 

(b)                                 The Depositary shall be fully protected and authorized in relying upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any party without being required to make any investigation or inquiry thereof to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order.  The Depositary may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so.  The Depositary shall not be deemed to have any duty or notice unless and until it has been provided with written notice.  In no event shall the Depositary be liable for indirect, special or consequential damages.

 

Section 9.                                          Obligations Unconditional.  The Depositary hereby acknowledges and agrees that its obligation to repay each Deposit together with interest thereon as provided herein is absolute, irrevocable and unconditional and constitutes a full recourse obligation of the Depositary enforceable against it to the full extent of all of its assets and properties.

 

Section 10.                                   Entire Agreement.  This Agreement (including all attachments hereto) sets forth all of the promises, covenants, agreements, conditions and understandings between the Depositary and the Escrow Agent with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 11.                                   Governing Law.  This Agreement, and the rights and obligations of the Depositary and the Escrow Agent with respect to the Deposits, shall be governed by, and

 

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construed in accordance with, the law of the State of New York and subject to the provisions of Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

 

Section 12.                                   Waiver of Jury Trial RightEACH OF THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 13.                                   Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*      *      *

 

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IN WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit Agreement to be duly executed as of the day and year first above written.

 

 

 

WILMINGTON TRUST COMPANY,

 

 

as Escrow Agent

 

 

 

 

 

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

 

Name: W. Chris Sponenberg

 

 

 

Title: Vice President

 

 

 

 

 

HSH NORDBANK AG, ACTING
THROUGH ITS NEW YORK BRANCH
,

 

 

as Depositary

 

 

 

 

 

 

 

 

By:

 /s/ Jack Campbell

 

 

 

Name: Jack Campbell

 

 

 

Title: Senior Vice President

 

 

 

 

 

 

 

 

By:

 /s/ Mikal Sanne

 

 

 

Name: Mikal Sanne

 

 

 

Title: AVP

 

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SCHEDULE I

 

SCHEDULE OF DEPOSITS

(CLASS G-2)

 

Aircraft Registration Number

 

Amount

 

Sub-Account

 

N603JB

 

12,131,288.00

 

N603JB

 

N605JB

 

12,157,767.40

 

N605JB

 

N606JB

 

12,157,418.00

 

N606JB

 

N607JB

 

12,183,548.00

 

N607JB

 

N608JB

 

12,211,420.00

 

N608JB

 

N612JB

 

12,238,421.00

 

N612JB

 

N613JB

 

12,264,551.00

 

N613JB

 

N615JB

 

12,264,551.00

 

N615JB

 

N618JB

 

12,257,583.00

 

N618JB

 

N621JB

 

12,257,583.00

 

N621JB

 

N623JB

 

12,284,409.80

 

N623JB

 

N624JB

 

12,284,409.80

 

N624JB

 

N625JB

 

12,890,150.00

 

N625JB

 

N627JB

 

12,917,450.00

 

N627JB

 

N629JB

 

12,917,450.00

 

N629JB

 

 

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EXHIBIT A

 

NOTICE OF PURCHASE WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier: (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-2) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $             , Account No.             .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [             , Account No.              , Reference:                   ] on                   , 200  , upon the telephonic request of a representative of Wilmington Trust Company, the Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  

 

 

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EXHIBIT B

 

NOTICE OF FINAL WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch

590 Madison Ave.

New York, New York 10022-2540

Attention:  Transportation - Americas

(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-2) dated as of November     , 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(b) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on                      , 200   .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits [and accrued interest thereon] to the Paying Agent at                   , ABA#                   , Account No.                   , Reference:                    .

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  .

 

 

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EXHIBIT C

 

NOTICE OF REPLACEMENT WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-2) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Deposit”).

 

In accordance with Section 2.5(b)(ii) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on            , 20   .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits to [             ] at                      , ABA#,                      Account No.                      , Reference:                        [and to pay accrued interest thereon to the Paying Agent at                      , ABA #                      , Acct. No.                      , Reference:                       ](1).  [The undersigned further directs the Depositary to pay the accrued interest on the Deposits to the Paying Agent on                      ,      (the next Interest Payment Date) at ABA #                      , Account No.                      , Reference:                       ](2)

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                   , 200  

 

 


(1)          To be deleted in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

(2)          To be inserted only in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

1


EX-4.10 12 a04-11378_4ex4d10.htm EX-4.10

Exhibit 4.10

 

EXECUTION COPY

 

 

DEPOSIT AGREEMENT

(CLASS C)

 

dated as of November 15, 2004

 

between

 

WILMINGTON TRUST COMPANY

as Escrow Agent

 

and

 

HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH

as Depositary

 

 



 

DEPOSIT AGREEMENT (Class C) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, this “Agreement”) between WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow and Paying Agent Agreement referred to below (in such capacity, together with its successors in such capacity, the “Escrow Agent”), and HSH NORDBANK AG, ACTING THROUGH ITS NEW YORK BRANCH, a New York State licensed branch office of a bank organized under the laws of Germany, as depositary bank hereunder (the “Depositary”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and Wilmington Trust Company, not in its individual capacity except as otherwise expressly provided therein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) have entered into a Pass Through Trust Agreement dated as of November 15, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2C-O pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2C-O Certificates referred to therein (the “Certificates”) are being issued (the date of such issuance, the “Issuance Date”);

 

WHEREAS, JetBlue and Morgan Stanley & Co., Incorporated, J.P. Morgan Securities Inc., Citigroup Global Markets Inc., and HSBC Securities (USA) Inc. (collectively, the “Underwriters” and, together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) have entered into an Underwriting Agreement dated November 9, 2004 pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) the Series C equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Escrow Agent, the Underwriters, the Pass Through Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in such capacity, together with its successors in such capacity, the “Paying Agent”) concurrently herewith are entering into an Escrow and Paying Agent Agreement (Class C), dated as of the date hereof (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Escrow and Paying Agent Agreement”); and

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors pursuant to the Escrow and Paying Agent Agreement, subject to withdrawal upon request of and proper certification by the Pass Through Trustee for the purpose of purchasing Equipment Notes, and

 



 

that pending such withdrawal the Net Proceeds be deposited by the Escrow Agent with the Depositary pursuant to this Agreement, which provides for the Depositary to pay interest for distribution to the Investors and to establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.                                          Definitions.  Capitalized terms used but not defined herein shall have the following meanings:

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to close in New York, New York or the city in which the Corporate Trust Office is maintained.

 

Debt Rate” means, for each Interest Period, a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period and (y) 3.100% per annum.

 

Interest Payment Date” means each February 15, May 15, August 15 and November 15, commencing on February 15, 2005; provided, that if any such date is not a Business Day, the relevant Interest Payment Date shall be the next succeeding Business Day.

 

Interest Period” means the period commencing on and including the Deposit Date and ending on but excluding the next succeeding Interest Payment Date, and thereafter, each successive period commencing on and including the immediately preceding Interest Payment Date and ending on but excluding the next succeeding Interest Payment Date.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Three-Month LIBOR” means, (i) with respect to the initial Interest Period, 2.29%, and (ii) for each subsequent Interest Period, the interest rate per annum (calculated on the basis of a 360-day year and actual days elapsed) at which deposits in United States dollars are offered to prime banks in the London interbank market as indicated on display page 3750 (British Bankers Association-LIBOR) of the Dow Jones Markets Service (or such other page as may replace such display page 3750 for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if not so indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee (as defined in the Note Purchase Agreement), of such rates as indicated on the Reuters LIBO Page (or such other page as may replace such Reuters Screen LIBO Page for the purpose of displaying London interbank offered rates for United States dollar deposits) or, if neither such alternative is indicated, the average (rounded upwards to the nearest 1/100 %), as determined by the Loan Trustee, of such rates offered by four major reference banks in the London interbank market, as selected by the Loan Trustee after consultation with JetBlue, to prime banks in the London interbank market, in each case at or about 11:00 a.m. (London time) on the day that is two LIBOR Business Days prior to the first day of such Interest Period (the “Three-Month LIBOR Reference Date”) for deposits for a period of three months in an amount substantially equal to the principal amount of Deposits then outstanding. The

 

2



 

Escrow Agent will, if necessary, request that each of the reference banks provide a quotation of its rate.  If at least two such quotations are provided, the rate will be the average of the quotations (rounded to the nearest 1/100 %).  If fewer than two quotations are provided, Three-Month LIBOR will be determined for the applicable Three-Month LIBOR Reference Date as the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York time, on that Three-Month LIBOR Reference Date, by three major banks in New York City, as selected by the Loan Trustee after consultation with JetBlue, for loans in U.S. dollars to leading European banks, for a period of three months, commencing on that Three-Month LIBOR Reference Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time.  If the banks so selected by the Loan Trustee are not quoting as mentioned above, the rate will be Three-Month LIBOR for the immediately preceding Interest Period.  Notwithstanding the foregoing, if a payment default on any Equipment Note (as defined in the Note Purchase Agreement) exists on any Regular Distribution Date (as defined in the Note Purchase Agreement), Three-Month LIBOR will not exceed 7%; provided that the Loan Trustee shall also calculate the rate for such Interest Period without giving effect to the 7% limitation; and provided further that, if all the then continuing payment defaults on all of the Equipment Notes (as defined in the Note Purchase Agreement) are cured during such Interest Period, Three-Month LIBOR shall revert to the rate calculated for such Interest Period without giving effect to the 7% limitation and shall apply for the entire Interest Period.

 

Section 2.                                          Terms of Deposit.

 

2.1                                 Acceptance of Depositary.  The Depositary hereby agrees to act as depositary bank as provided herein and in connection therewith to accept all amounts to be delivered to or held by the Depositary pursuant to the terms of this Agreement.  The Depositary further agrees to hold, maintain and safeguard the Deposits and the Accounts (as defined below) during the term of this Agreement in accordance with the provisions of this Agreement.  The Depositary shall neither be responsible for or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document executed between and among the parties hereto.  This Agreement sets forth all of the obligations of the Depositary, and no additional obligations shall be implied from the terms of this Agreement or any other agreement, instrument or document.  The Escrow Agent shall not have any right to withdraw, assign or otherwise transfer moneys held in the Accounts except as permitted by this Agreement.

 

2.2                                 Establishment of Accounts.  The Escrow Agent hereby instructs the Depositary, and the Depositary agrees, to establish the separate deposit accounts listed on Schedule I hereto and to establish such additional separate deposit accounts as may be required in connection with the deposits contemplated by Section 2.6 hereof (each, an “Account” and collectively, the “Accounts”), each in the name of the Escrow Agent and all on the terms and conditions set forth in this Agreement.  It is the express intention of the parties hereto that all amounts on deposit hereunder be deemed to be general deposits, not special deposits, and that such deposits create a customer and bank relationship between the Escrow Agent and Depository.

 

2.3                                 Deposits.  The Escrow Agent shall direct the Underwriters to deposit with the Depositary on the date of this Agreement (the “Deposit Date”) in Federal (same day) funds by

 

3



 

wire transfer to the account of JP Morgan Chase, ABA: 021000021, for credit to HSH Nordbank NY Branch, Account Number: 400949687, for further credit to Wilmington Trust Company, Account Number: 7990116721-06, ref: JetBlue EETC 2004-2 C, and the Depositary shall accept from the Underwriters, on behalf of the Escrow Agent, the sum of US$136,066,000.  Upon acceptance of such sum, the Depositary shall (i) establish each of the deposits specified in Schedule I hereto maturing on June 30, 2006 (including any deposit made pursuant to Section 2.6 hereof, individually, a “Deposit” and, collectively, the “Deposits”) and (ii) credit each Deposit to the related Account as set forth therein.  No amount shall be deposited in any Account other than the related Deposit.

 

2.4                                 Interest.  Each Deposit shall bear interest from and including the date of deposit to but excluding the date of withdrawal at the rate per annum for each Interest Period equal to the Debt Rate for such Interest Period (computed on the basis of a year of 360 days and actual days elapsed) payable to the Paying Agent on behalf of the Escrow Agent quarterly in arrears on each Interest Payment Date and, as provided in Section 2.5(b) hereof, on the date of the Final Withdrawal (as defined below), all in accordance with the terms of this Agreement (whether or not any such Deposit is withdrawn on an Interest Payment Date).  Interest accrued on any Deposit that is withdrawn pursuant to a Notice of Purchase Withdrawal (as defined below) shall be paid on the next Interest Payment Date, notwithstanding any intervening Final Withdrawal (as defined below).  In addition, interest accrued on any Deposit that is withdrawn pursuant to a Notice of Replacement Withdrawal (as defined below) but not paid on the date of the Final Withdrawal shall be paid on the next Interest Payment Date.

 

2.5                                 Withdrawals.  (a)  On and after the date seven days after the establishment of any Deposit, the Escrow Agent may, by providing a notice of withdrawal to the Depositary by 10:00 a.m. (New York City time) on a Business Day that is at least seven days prior to the date of such requested withdrawal in the form of Exhibit A hereto (a “Notice of Purchase Withdrawal”), withdraw at any time while funds may be transferred in the Fed Wire electronic transfer system not less than the entire principal balance of such Deposit as set forth on Schedule I, except that at any time prior to the actual withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee may, by written notice to the Depositary, cancel such withdrawal (including on the scheduled date therefor), and thereafter such Deposit shall continue to be maintained by the Depositary in accordance with the original terms thereof.  Following such withdrawal the balance in the related Account shall be zero and the Depositary shall, without limiting or otherwise affecting the Depositary’s payment obligation pursuant to the penultimate sentence of Section 2.4 hereof, close such Account. 

 

(b)                                 (i)  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit B hereto (a “Notice of Final Withdrawal”), withdraw the entire amount of all of the remaining Deposits together with the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Final Withdrawal”), on such date as shall be specified in such Notice of Final Withdrawal.  If a Notice of Final Withdrawal has not been given to the Depositary on or before June 5, 2006 and there are unwithdrawn Deposits on such date, the Depositary shall pay the amount of the Final Withdrawal to the Paying Agent on June 30, 2006.

 

4



 

(ii)                                  The Escrow Agent may, by providing at least 15 days’ prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a “Notice of Replacement Withdrawal”), withdraw the entire amount of all Deposits then held by the Depositary together with, if specified in such Notice of Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid interest on such Deposits to but excluding the specified date of withdrawal (a “Replacement Withdrawal”), on such date as shall be specified in such Notice of Replacement Withdrawal.

 

(c)                                  If the Depositary receives a duly completed Notice of Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement Withdrawal (each, a “Withdrawal Notice”) complying with the provisions of this Agreement, it shall make the payments specified therein in accordance with the provisions of this Agreement.

 

If such complying Withdrawal Notice is received by the Depositary no later than 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the next succeeding Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.  If such complying Withdrawal Notice is received by the Depositary after 11:00 a.m. (New York City time) on a Business Day, the Depositary shall make the payments requested in such Withdrawal Notice no later than 10:00 a.m. (New York City time) on the second Business Day next following such Business Day or such later time as requested by the Escrow Agent while funds may be transferred in the Fed Wire electronic transfer system as specified in such Withdrawal Notice.

 

2.6                                 Other Accounts.  On the date of withdrawal of any Deposit pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit with the Depositary any portion thereof and the Depositary shall accept the same for deposit hereunder.  Any sums so received for deposit shall be established as a new Deposit and credited to a new Account, all as more fully provided in Section 2.3 hereof, and thereafter the provisions of this Agreement shall apply thereto as fully and with the same force and effect as if such Deposit had been established on the Deposit Date except that (i) such Deposit may not be withdrawn prior to the date seven days after the establishment thereof and (ii) such Deposit shall mature on June 30, 2006 and bear interest as provided in Section 2.4.  The Depositary shall promptly give notice to the Escrow Agent of receipt of each such re-deposit and the account number assigned thereto.

 

Section 3.                                          Termination.  This Agreement shall terminate on the fifth Business Day after the later of the date on which (i) all of the Deposits shall have been withdrawn and paid as provided herein without any re-deposit of such funds and (ii) all accrued and unpaid interest on the Deposits shall have been paid as provided herein, but in no event prior to the date on which the Depositary shall have performed in full its obligations hereunder.  For the avoidance of doubt, the obligations of the Depositary under the last two sentences of Section 2.4 hereof shall remain in full force and effect notwithstanding the execution and delivery of a replacement Deposit Agreement in accordance with Section 4(a)(v) of the Note Purchase Agreement.

 

5



 

Section 4.                                          Payments.  All payments (including, without limitation, those payments made in respect of Taxes (as defined and provided for below)) made by the Depositary hereunder shall be paid in United States Dollars and immediately available funds by wire transfer (i) in the case of accrued interest on the Deposits payable under Section 2.4 hereof or any Final Withdrawal, directly to the Paying Agent at Wilmington Trust Company, Wilmington, Delaware, ABA# 031100092, for credit to the account of JetBlue 2004-2, Account No. 068200-000, Attention:  Monica Henry, Telephone No. (302) 636-6296, Reference:  JetBlue 2004-2 C, or to such other account as the Paying Agent may direct from time to time in writing to the Depositary and the Escrow Agent and (ii) in the case of any withdrawal of one or more Deposits pursuant to a Notice of Purchase Withdrawal or Notice of Replacement Withdrawal, directly to or as directed by the Pass Through Trustee as specified and in the manner provided in such Notice of Purchase Withdrawal or Notice of Replacement Withdrawal.  The Depositary hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against the Deposits howsoever arising.  Except as expressly provided below, all payments on or in respect of each Deposit shall be made free and clear of and without reduction for or on account of any and all taxes, levies or other impositions or charges (collectively, “Taxes”).  However, if the Depositary or the Paying Agent (pursuant to Section 2.04 of the Escrow and Paying Agent Agreement) shall be required by law to deduct or withhold any Taxes from or in respect of any sum payable hereunder, the Depositary shall (i) make such deductions or withholding and (ii) pay the full amount deducted or withheld (including in respect of such additional amounts) to the competent taxation authority. 

 

Section 5.                                          Representation and Warranties.  The Depositary hereby represents and warrants to JetBlue, the Escrow Agent, the Pass Through Trustee, the Underwriters and the Paying Agent that:

 

(1)                                  it is a New York licensed branch office of a German bank duly organized and existing under the laws of Germany and is duly qualified to conduct banking business in the State of New York through its New York branch;

 

(2)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(3)                                  the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof;

 

(4)                                  no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

6



 

(5)                                  neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, (A) conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or (B) results or will result in a material breach or violation of any of the terms, conditions or provisions of any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(6)                                  there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (i) would adversely affect the ability of it to perform its obligations under this Agreement or (ii) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Depositary in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 6.                                          Transfer.  Neither party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under the Escrow and Paying Agent Agreement, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent) permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights of the “Pass Through Trustee” hereunder, and each reference herein to “JetBlue Airways Pass Through Trust 2004-2C-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2C-S”.  The Escrow Agent and the Depositary hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  For the purposes of this Section 6, “Transfer” means the transfer contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; and “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2C-S.

 

Section 7.                                          Amendment, Etc.  This Agreement may not be amended, waived or otherwise modified except by an instrument in writing signed by the parties hereto.

 

7



 

Section 8.                                          Notices.

 

(a)                                  Unless otherwise expressly provided herein, any notice, instruction or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received after normal business hours, the next open of business on a Business Day).  All notices shall be sent to (x) in the case of the Depositary, HSH Nordbank AG, New York Branch, 590 Madison Ave., New York, New York 10022-2540, Attention:  Transportation-Americas (Telecopier: (212) 407-6033) or (y) in the case of the Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882), in each case, with a copy to the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration (Telecopier:  (302) 651-8882) and to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  Vice President – Corporate Finance (Telecopier:  (718) 709-3639) with a copy to JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, New York 11375, Attention:  General Counsel (Telecopier:  (718) 709-3631) (or at such other address as any such party may specify from time to time in a written notice to the parties hereto).  On or prior to the execution of this Agreement, the Escrow Agent has delivered to the Depositary an incumbency certificate containing specimen signatures of the representatives of the Escrow Agent who are authorized to give notices and instructions with respect to this Agreement.  The Depositary may conclusively rely on such certificate until the Depositary receives written notice from the Escrow Agent to the contrary.

 

(b)                                 The Depositary shall be fully protected and authorized in relying upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any party without being required to make any investigation or inquiry thereof to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order.  The Depositary may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so.  The Depositary shall not be deemed to have any duty or notice unless and until it has been provided with written notice.  In no event shall the Depositary be liable for indirect, special or consequential damages.

 

Section 9.                                          Obligations Unconditional.  The Depositary hereby acknowledges and agrees that its obligation to repay each Deposit together with interest thereon as provided herein is absolute, irrevocable and unconditional and constitutes a full recourse obligation of the Depositary enforceable against it to the full extent of all of its assets and properties.

 

Section 10.                                   Entire Agreement.  This Agreement (including all attachments hereto) sets forth all of the promises, covenants, agreements, conditions and understandings between the Depositary and the Escrow Agent with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 11.                                   Governing Law.  This Agreement, and the rights and obligations of the Depositary and the Escrow Agent with respect to the Deposits, shall be governed by, and

 

8



 

construed in accordance with, the law of the State of New York and subject to the provisions of Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

 

Section 12.                                   Waiver of Jury Trial RightEACH OF THE DEPOSITARY AND THE ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 13.                                   Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*     *     *

 

9



 

IN WITNESS WHEREOF, the Escrow Agent and the Depositary have caused this Deposit Agreement to be duly executed as of the day and year first above written.

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

 

Title: Vice President

 

 

 

 

 

HSH NORDBANK AG, ACTING
THROUGH ITS NEW YORK BRANCH
,

 

as Depositary

 

 

 

 

 

By:

 /s/ Jack Campbell

 

 

Name: Jack Campbell

 

 

Title: Senior Vice President

 

 

 

 

 

By:

 /s/ Mikal Sanne

 

 

Name: Mikal Sanne

 

 

Title: AVP

 

10



 

SCHEDULE I

 

SCHEDULE OF DEPOSITS

(CLASS C)

 

Aircraft Registration Number

 

Amount

 

Sub-Account

 

N603JB

 

8,982,769.64

 

N603JB

 

N605JB

 

9,002,117.93

 

N605JB

 

N606JB

 

9,002,117.93

 

N606JB

 

N607JB

 

9,021,466.23

 

N607JB

 

N608JB

 

9,042,104.42

 

N608JB

 

N612JB

 

9,062,097.66

 

N612JB

 

N613JB

 

9,081,445.95

 

N613JB

 

N615JB

 

9,081,445.95

 

N615JB

 

N618JB

 

9,076,286.41

 

N618JB

 

N621JB

 

9,076,286.41

 

N621JB

 

N623JB

 

9,096,150.66

 

N623JB

 

N624JB

 

9,096,150.66

 

N624JB

 

N625JB

 

9,135,621.19

 

N625JB

 

N627JB

 

9,154,969.48

 

N627JB

 

N629JB

 

9,154,969.48

 

N629JB

 

 

1



 

EXHIBIT A

 

NOTICE OF PURCHASE WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier: (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class C) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $                    , Account No.                    ..

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [                    , Account No.                     , Reference:                     ] on                     , 200  , upon the telephonic request of a representative of Wilmington Trust Company, the Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

Dated:                   , 200  

 

 

1



 

EXHIBIT B

 

NOTICE OF FINAL WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class C) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(b) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on                  , 200  .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits [and accrued interest thereon] to the Paying Agent at                  , ABA#                  , Account No.                  , Reference:                   .

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

Dated:                   , 200  .

 

 

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EXHIBIT C

 

NOTICE OF REPLACEMENT WITHDRAWAL

 

 

HSH Nordbank AG, New York Branch
590 Madison Ave.
New York, New York 10022-2540
Attention:  Transportation - Americas
(Telecopier:  (212) 407-6033)

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class C) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Deposit”).

 

In accordance with Section 2.5(b)(ii) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of all Deposits for payment on                  , 20   .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposits to [                 ] at                  , ABA#                  , Account No.                  , Reference:                    [and to pay accrued interest thereon to the Paying Agent at                  , ABA #                  , Acct. No.                  , Reference:                    ](1).  [The undersigned further directs the Depositary to pay the accrued interest on the Deposits to the Paying Agent on                   ,      (the next Interest Payment Date) at ABA #                   , Account No.                   , Reference:                    ](2)

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

Dated:                   , 200  

 

 


(1)          To be deleted in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

(2)          To be inserted only in the case of a Replacement Withdrawal scheduled for a date which is not an Interest Payment Date (as defined in the Escrow and Paying Agent Agreement).

 

1


EX-4.11 13 a04-11378_4ex4d11.htm EX-4.11

Exhibit 4.11

 

EXECUTION COPY

 

ESCROW AND
PAYING AGENT AGREEMENT (CLASS G - 1)

 

dated as of November 15, 2004

 

among

 

WILMINGTON TRUST COMPANY

as Escrow Agent

 

MORGAN STANLEY & CO. INCORPORATED

 

CITIGROUP GLOBAL MARKETS INC.

 

J.P. MORGAN SECURITIES, INC.

 

and

 

HSBC SECURITIES (USA) INC.

as Underwriters

 

WILMINGTON TRUST COMPANY,

not in its individual capacity,

but solely as Pass Through Trustee

for and on behalf of

JetBlue Airways Pass Through Trust 2004-2G-1-O

as Pass Through Trustee

 

and

 

WILMINGTON TRUST COMPANY

as Paying Agent

 



 

Table of Contents

 

Section 1.

Escrow Agent

 

1.01.

Appointment of Escrow Agent

 

1.02.

Instruction; Etc

 

1.03.

Initial Escrow Amount; Issuance of Escrow Receipts

 

1.04.

Payments to Receiptholders; Notice to Depositary

 

1.05.

Mutilated, Destroyed, Lost or Stolen Escrow Receipt

 

1.06.

Additional Escrow Amounts

 

1.07.

Resignation or Removal of Escrow Agent

 

1.08.

Persons Deemed Owners

 

1.09.

Further Assurances

 

 

 

 

Section 2.

Paying Agent

 

2.01.

Appointment of Paying Agent

 

2.02.

Establishment of Paying Agent Account

 

2.03.

Payments from Paying Agent Account

 

2.04.

Withholding Taxes

 

2.05.

Resignation or Removal of Paying Agent

 

2.06.

Notice of Final Withdrawal

 

 

 

 

Section 3.

Payments

 

 

 

 

Section 4.

Other Actions

 

 

 

 

Section 5.

Representations and Warranties of the Escrow Agent

 

 

 

 

Section 6.

Representations and Warranties of the Paying Agent

 

 

 

 

Section 7.

Indemnification

 

 

 

 

Section 8.

Amendment, Etc

 

 

 

 

Section 9.

Notices

 

 

 

 

Section 10.

Transfer

 

 

 

 

Section 11.

Entire Agreement

 

 

 

 

Section 12.

Governing Law

 

 

 

 

Section 13.

Waiver of Jury Trial Right

 

 

 

 

Section 14.

Counterparts

 

 

 

 

Exhibit A

Escrow Receipt

 

Exhibit B

Withdrawal Certificate

 

 

i



 

ESCROW AND PAYING AGENT AGREEMENT (CLASS G-1)

 

ESCROW AND PAYING AGENT AGREEMENT (Class G-1) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, this “Agreement”) among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); MORGAN STANLEY & CO. INCORPORATED, CITIGROUP GLOBAL MARKETS INC. J.P. MORGAN SECURITIES INC. and HSBC SECURITIES (USA) INC., as Underwriters (the “Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) under the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity except as otherwise expressly provided herein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as paying agent hereunder (in such capacity, together with its successors in such capacity, the “Paying Agent”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and the Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as of November 15, 2004 (together, as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2G-1-O (the “Pass Through Trust”) pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2G-1-O Certificates referred to therein (the “Certificates”) are being issued;

 

WHEREAS, JetBlue and the Underwriters have entered into an Underwriting Agreement dated November 9, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Underwriters Agreement”) pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors, subject to withdrawal upon request by the Pass Through Trustee and satisfaction of the conditions set forth in the Note Purchase Agreement for the purpose of purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited on behalf of the Escrow Agent with HSH Nordbank AG, acting through its New York Branch, a New York State licensed branch office of a Landesbank organized under the laws of Germany, as Depositary (the “Depositary

 



 

which shall also be deemed to refer to any Replacement Depositary (as defined in the Note Purchase Agreement) from and after the date on which the Deposits are transferred to such Replacement Depositary) under the Deposit Agreement, dated as of the date hereof between the Depositary and the Escrow Agent relating to the Pass Through Trust (as amended, modified, supplemented or replaced from time to time in accordance with the terms thereof, the “Deposit Agreement” which shall also be deemed to refer to any Replacement Deposit Agreement (as defined in the Note Purchase Agreement) to which the Escrow Agent becomes a party pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits from the Depositary to the Replacement Depositary) pursuant to which, among other things, the Depositary will pay interest for distribution to the Investors and establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee;

 

WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay amounts required to be distributed to the Investors in accordance with this Agreement; and

 

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Pass Through Trust Agreement.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.              Escrow Agent.

 

1.01.        Appointment of Escrow Agent.  Each of the Underwriters, for and on behalf of each of the Investors, hereby irrevocably appoints, authorizes and directs the Escrow Agent to act as escrow agent and fiduciary hereunder and under the Deposit Agreement for such specific purposes and with such powers as are specifically delegated to the Escrow Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Escrow Agent under this Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent in accordance with the terms of this Agreement.  This Agreement is irrevocable and the Investors’ rights with respect to any monies received and held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement shall only be as provided under the terms and conditions of this Agreement and the Deposit Agreement.  The Escrow Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement; (b) shall not be responsible to the Pass Through Trustee or the Investors for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or the Deposit Agreement or for the failure by the Pass Through Trustee, the investors or any other person or entity (other than the Escrow Agent) to perform any of its obligations hereunder (whether or not the Escrow Agent shall have any knowledge thereof); and (c) shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement) or breach of its obligations hereunder.

 

2



 

1.02.        Instruction; Etc.  The Underwriters, for and on behalf of each of the Investors, hereby irrevocably instruct the Escrow Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and, if requested by the Company pursuant to Section 4(a)(v) of the Note Purchase Agreement, to enter into a Replacement Deposit Agreement with the Replacement Depositary specified by the Company, (b) to appoint the Paying Agent as provided in this Agreement, (c) upon receipt at any time and from time to time prior to the Termination Date (as defined below) of a certificate substantially in the form of Exhibit B hereto (a “Withdrawal Certificate”) executed by the Pass Through Trustee, together with an attached Notice of Purchase Withdrawal in substantially the form of Exhibit A to the Deposit Agreement duly completed by the Pass Through Trustee (the “Applicable Notice of Purchase Withdrawal” and the withdrawal to which it relates, a “Purchase Withdrawal”), immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to the Depositary by facsimile transmission in accordance with the Deposit Agreement; provided that, upon the request of the Pass Through Trustee after such transmission, the Escrow Agent shall cancel such Applicable Notice of Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by the Pass Through Trustee, together with an attached Notice of Replacement Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly completed by the Pass Through Trustee, to (X) give such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal, on the date specified in such notice, which shall not be less than 15 days after such notice is given (the “Replacement Withdrawal Date”), of all Deposits then held by the Depositary together with, if the Replacement Withdrawal Date occurs on a Regular Distribution Date, all accrued and unpaid interest on such Deposits to but excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to transfer such Deposits on behalf of the Escrow Agent to the Replacement Depositary in accordance with the Replacement Deposit Agreement, and (e) if there are any undrawn Deposits (as defined in the Deposit Agreement) on the “Termination Date”, which shall mean the earlier of (i) the Delivery Period Termination Date (as defined in the Note Purchase Agreement) and (ii) the day on which the Escrow Agent receives notice from the Pass Through Trustee that the Pass Through Trustee’s obligation to purchase Equipment Notes under the Note Purchase Agreement has terminated, to give notice to the Depositary (with a copy to the Paying Agent) substantially in the form of Exhibit B to the Deposit Agreement requesting a withdrawal of all of the remaining Deposits, together with accrued and unpaid interest on such Deposits to the date of withdrawal, on the 25th day after the date that such notice of withdrawal is given to the Depositary (or, if not a Business Day, on the next succeeding Business Day) (a “Final Withdrawal”), provided that if the day scheduled for the Final Withdrawal in accordance with the foregoing is within 10 days before or after a Regular Distribution Date, then the Escrow Agent shall request that such requested Final Withdrawal be made on such Regular Distribution Date (the date of such requested withdrawal, the “Final Withdrawal Date”).  If for any reason the Escrow Agent shall have failed to give the Final Withdrawal notice to the Depositary on or before June 5, 2006, and there are unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed to be June 30, 2006.

 

1.03.        Initial Escrow Amount; Issuance of Escrow Receipts.  The Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby acknowledge that on the date hereof they shall, irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount in U.S. dollars (“Dollars”) and immediately available funds equal to $176,753,000, for deposit on behalf of the Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit Agreement.  The Underwriters hereby instruct the Escrow Agent, upon receipt of such sum

 

3



 

from the Underwriters, to confirm such receipt by executing and delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an “Escrow Receipt”), (a) to be affixed by the Pass Through Trustee to each Certificate and (b) to evidence the same percentage interest (the “Escrow Interest”) in the Account Amounts (as defined below) as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which it is to be affixed.  The Escrow Agent shall provide to the Pass Through Trustee for attachment to each Certificate newly issued under and in accordance with the Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may from time to time request of the Escrow Agent.  Each Escrow Receipt shall be registered by the Escrow Agent in a register (the “Register”) maintained by the Escrow Agent in the same name and same manner as the Certificate to which it is attached and may not thereafter be detached from such Certificate to which it is to be affixed prior to the distribution of the Final Withdrawal (the “Final Distribution”).  After the Final Distribution, no additional Escrow Receipts shall be issued and the Pass Through Trustee shall request the return to the Escrow Agent for cancellation of all outstanding Escrow Receipts.

 

1.04.        Payments to Receiptholders; Notice to Depositary.  All payments and distributions made to holders of an Escrow Receipt (collectively “Receiptholders”) in respect of the Escrow Receipt shall be made only from amounts deposited in the Paying Agent Account (as defined below) (“Account Amounts”).  Each Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will look solely to the Account Amounts for any payment or distribution due to such Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement and (b) it will have no recourse to JetBlue, the Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust Company, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account or the obligations of the parties hereto, nor shall anything set forth herein, or contained in the terms of the Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

No later than four Business Days prior to each Regular Distribution Date, the Escrow Agent shall provide a notice to the Depositary specifying the amount of interest due on the Deposits on such Regular Distribution Date.

 

1.05.        Mutilated, Destroyed, Lost or Stolen Escrow Receipt.  If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow Agent receives evidence to its satisfaction of the destruction, loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and the Pass Through Trustee such security, indemnity or bond, as may be required by them to hold each of them harmless, then, absent notice to the Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt has been acquired by a bona fide purchaser, and provided that the requirements of Section 8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow Interest in the Account Amounts and bearing a number not contemporaneously outstanding.

 

4



 

In connection with the issuance of any new Escrow Receipt under this Section 1.05, the Escrow Agent may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Pass Through Trustee and the Escrow Agent) connected therewith.

 

Any duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in the Account Amounts, as if originally issued, whether or not the lost, stolen or destroyed Escrow Receipt shall be found at any time.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Escrow Receipts.

 

1.06.        Additional Escrow Amounts.  On the date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or all of the amounts so withdrawn in accordance with Section 2.6 of the Deposit Agreement.

 

1.07.        Resignation or Removal of Escrow Agent.  Subject to the appointment and acceptance of a successor Escrow Agent as provided below, the Escrow Agent may resign at any time by giving 30 days’ prior written notice thereof to the Investors, but may not otherwise be removed except for cause by the written consent of the Investors with respect to Investors representing Escrow Interests aggregating not less than a majority in interest in the Account Amounts (an “Action of Investors”).  Upon any such resignation or removal, the Investors, by an Action of Investors, shall have the right to appoint a successor Escrow Agent.  If no successor Escrow Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Escrow Agent’s giving of notice of resignation or the removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor Escrow Agent.  Any successor Escrow Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall enter into such documents as the Pass Through Trustee shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations hereunder.  No resignation or removal of the Escrow Agent shall be effective unless a written confirmation shall have been obtained from each of Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow Agent with the successor Escrow Agent will not result in (a) a reduction of the rating for the Certificates below the then current rating for the Certificates (without regard to the Policy) or (b) a withdrawal or suspension of the rating of the Certificates.

 

1.08.        Persons Deemed Owners.  Prior to due presentment of a Certificate for registration of transfer, the Escrow Agent and the Paying Agent may treat the Person in whose name any Escrow Receipt is registered (as of the day of determination) as the owner of such Escrow Receipt for the purpose of receiving distributions pursuant to this Agreement and for all other purposes whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected by any notice to the contrary.

 

5



 

1.09.       Further Assurances.  The Escrow Agent agrees to take such actions, and execute such other documents, as may be reasonably requested by the Pass Through Trustee in order to effectuate the purposes of this Agreement and the performance by the Escrow Agent of its obligations hereunder.

 

Section 2.              Paying Agent.

 

2.01.       Appointment of Paying Agent.  The Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to act as its paying agent hereunder, for the benefit of the Investors, for such specific purposes and with such powers as are specifically delegated to the Paying Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Paying Agent under this Agreement or the Deposit Agreement shall be held in the Paying Agent Account for the benefit of the Investors.  The Paying Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement, and shall not by reason of this Agreement be a trustee for the Escrow Agent; (b) shall not be responsible to the Escrow Agent for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or for the failure by the Escrow Agent or any other person or entity (other than the Paying Agent) to perform any of its obligations hereunder (whether or not the Paying Agent shall have any knowledge thereof); and (c) except in respect of its express obligations hereunder, shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement).

 

2.02.       Establishment of Paying Agent Account.  The Paying Agent shall establish a deposit account (the “Paying Agent Account”) at Wilmington Trust Company in the name of the Escrow Agent.  It is expressly understood by the parties hereto that the Paying Agent is acting as the paying agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying Agent Account constitute part of the Trust Property.

 

2.03.       Payments from Paying Agent Account.  The Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to act, as follows:

 

(a)           On each Interest Payment Date (as defined in the Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account from the Depositary of any amount in respect of accrued interest on the Deposits, the Paying Agent shall distribute out of the Paying Agent Account the entire amount deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding such Interest Payment Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount of interest deposited by the Depositary in the Paying Agent Account on such date, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

6



 

(b)           Upon the confirmation by the Paying Agent of receipt in the Paying Agent Account from the Depositary of any amount in respect of the Final Withdrawal, the Paying Agent shall forthwith distribute the entire amount of the Final Withdrawal deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding the Final Withdrawal Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount in the Paying Agent Account on account of such Final Withdrawal, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

(c)           If any payment of interest or principal in respect of the Final Withdrawal is not received by the Paying Agent within five days of the applicable date when due, then it shall be distributed to Receiptholders after actual receipt by the Paying Agent on the same basis as a Special Payment is distributed under the Pass Through Trust Agreement.

 

(d)           The Paying Agent shall include with any check mailed pursuant to this Section any notice required to be distributed under the Pass Through Trust Agreement that is furnished to the Paying Agent by the Pass Through Trustee.

 

(e)           In connection with any distribution made by the Paying Agent pursuant to this Section 2.03, if at the time of such distribution the Paying Agent and the Pass Through Trustee are not the same Person, the Paying Agent shall send to the Pass Through Trustee a report stating the aggregate amount of funds distributed by the Paying Agent hereunder and the amount allocable to principal, interest and any unused Deposits.

 

2.04.       Withholding Taxes.  The Paying Agent shall exclude and withhold from each distribution of accrued interest on the Deposits (as defined in the Deposit Agreement) and any amount in respect of the Final Withdrawal any and all withholding taxes applicable thereto as required by law.  The Paying Agent agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Deposits (as defined in the Deposit Agreement) or the escrow amounts, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Receiptholders, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each such Receiptholder appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Receiptholder may reasonably request from time to time.  The Paying Agent agrees to file any other information reports as it may be required to file under United States law.

 

2.05.       Resignation or Removal of Paying Agent.  Subject to the appointment and acceptance of a successor Paying Agent as provided below, the Paying Agent may resign at anytime by giving 30 days’ prior written notice thereof to the Escrow Agent, but may not otherwise be removed except for cause by the Escrow Agent.  Upon any such resignation or removal, the Escrow Agent shall have the right to appoint a successor Paying Agent.  If no successor Paying Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Paying Agent’s giving of notice of resignation or the removal of

 

7



 

the retiring Paying Agent, then the retiring Paying Agent may appoint a successor Paying Agent.  Any Successor Paying Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Paying Agent hereunder by a successor Paying Agent, such successor Paying Agent shall enter into such documents as the Escrow Agent shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent, and the retiring Paying Agent shall be discharged from its duties and obligations hereunder.

 

2.06.        Notice of Final Withdrawal.  Promptly after receipt by the Paying Agent of notice that the Escrow Agent has requested a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall cause notice of the distribution of such Final Withdrawal to be mailed to each of the Receiptholders at its address as it appears in the Register.  Such notice shall be mailed not less than 20 days prior to the Final Withdrawal Date.  Such notice shall set forth:

 

(i)            the Final Withdrawal Date and the date for determining Receiptholders of record who shall be entitled to receive distributions in respect of such Final Withdrawal,

 

(ii)           the amount of the payment in respect of such Final Withdrawal for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee) and the amount thereof constituting unused Deposits (as defined in the Deposit Agreement) and interest thereon, and

 

(iii)          if the Final Withdrawal Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee).

 

Such mailing may include any notice required to be given to Certificateholders in connection with such distribution pursuant to the Pass Through Trust Agreement.

 

Section 3.              Payments.  If, notwithstanding the instructions in Section 4 of the Deposit Agreement that all amounts payable to the Escrow Agent under the Deposit Agreement be paid by the Depositary directly to the Paying Agent or the Pass Through Trustee or a Replacement Depositary (depending on the circumstances), the Escrow Agent receives any payment thereunder, then the Escrow Agent shall forthwith pay such amount in Dollars and in immediately available funds by wire transfer to (a) in the case of a payment of accrued interest on the Deposits (as defined in the Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent Account and (b) in the case of any Purchase Withdrawal, directly to the Pass Through Trustee or its designee as specified and in the manner provided in the Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement Withdrawal (other than accrued interest), to the Replacement Depositary as provided in the Replacement Depositary Agreement.  The Escrow Agent hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against amounts payable to the Paying Agent howsoever arising.

 

Section 4.              Other Actions.  The Escrow Agent shall take such other actions under or in respect of the Deposit Agreement (including, without limitation, the enforcement of the

 

8



 

obligations of the Depositary thereunder) as the Investors, by an Action of Investors, may from time to time request.

 

Section 5.             Representations and Warranties of the Escrow Agent.  The Escrow Agent represents and warrants to JetBlue, the Investors, the Paying Agent and the Pass Through Trustee as follows:

 

(i)            it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)           it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement, the Deposit Agreement and any Replacement Deposit Agreement;

 

(iii)          the execution, delivery and performance of each of this Agreement, the Deposit Agreement and any Replacement Deposit Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and each such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof or thereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)          no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement;

 

(v)           neither the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement, nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(vi)          there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which,

 

9



 

if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or the Deposit Agreement or any Replacement Deposit Agreement or (B) would call into question or challenge the validity of this Agreement or the Deposit Agreement or the enforceability hereof or thereof in accordance with the terms hereof or thereof, nor is the Escrow Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement or the Deposit Agreement.

 

Section 6.              Representations and Warranties of the Paying Agent.  The Paying Agent represents and warrants to JetBlue, the Investors, the Escrow Agent and the Pass Through Trustee as follows:

 

(i)            it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)           it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(iii)          the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of it and does not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)          no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

(v)           neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

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(vi)          there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or (B) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Paying Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 7.              Indemnification.  Except for actions expressly required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the Paying Agent shall in all cases be fully justified in failing or refusing to act hereunder unless it shall have been indemnified (both in such capacities and individually) by the party requesting such action in a manner reasonably satisfactory to it against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  In the event JetBlue requests any amendment to any Operative Agreement (as defined in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all reasonable fees and expenses (including, without limitation, fees and disbursements of counsel) of the Escrow Agent and the Paying Agent in connection therewith.

 

Section 8.              Amendment, Etc.  Upon request of the Pass Through Trustee and approval by an Action of Investors, the Escrow Agent shall enter into an amendment to this Agreement, so long as such amendment does not adversely affect the rights or obligations of the Escrow Agent or the Paying Agent, provided that upon request of the Pass Through Trustee and without any consent of the Investors, the Escrow Agent shall enter into an amendment to this Agreement for any of the following purposes:

 

(1)           to correct or supplement any provision in this Agreement which may be defective or inconsistent with any other provision herein or to cure any ambiguity or correct any mistake or to modify any other provision with respect to matters or questions arising under this Agreement, provided that any such action shall not materially adversely affect the interests of the Investors; or

 

(2)           to comply with any requirement of the SEC, applicable law, rules or regulations of any exchange or quotation system on which the Certificates are listed or any regulatory body; or

 

(3)           to evidence and provide for the acceptance of appointment under this Agreement of a successor Escrow Agent, successor Paying Agent or successor Pass Through Trustee.

 

Section 9.              Notices.  Unless otherwise expressly provided herein, any notice or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received outside of business hours, at the opening of business on the next Business Day).  All notices shall be sent to (a) in the case of the Investors, as their respective addresses shall appear in the Register, (b) in the case of the

 

11



 

Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), (c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), or (d) in the case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), in each case with a copy to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  Vice President – Corporate Finance (Telecopier:  718-709-3639) with a copy to:  JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  General Counsel (Telecopier:  718-709-3631) (or at such other address as any such party may specify from time to time in a written notice to the other parties).  On or prior to the execution of this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a certificate containing specimen signatures of the representatives of the Pass Through Trustee who are authorized to give notices and instructions with respect to this Agreement.  The Escrow Agent may conclusively rely on such certificate until the Escrow Agent receives written notice from the Pass Through Trustee to the contrary.

 

Section 10.            Transfer.  No party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under Section 1.07 hereof or (in the case of the Paying Agent) to a successor paying agent under Section 2.05 hereof, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent and the Paying Agent) their respective permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights and obligations of the “Pass Through Trustee” hereunder and each reference herein to “JetBlue Airways Pass Through Trust “2004-2G-1-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2G-1-S”.  The parties hereto hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  As used herein, “Transfer” means the transfers of the assets to the Successor Trust contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-1-S.

 

Section 11.            Entire Agreement.  This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings among the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 12.            Governing Law.  This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.

 

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Section 13.            Waiver of Jury Trial RightEACH OF THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 14.            Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*     *     *

 

13



 

IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class G-1) to be duly executed as of the day and year first above written.

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

By.

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

 

 

MORGAN STANLEY & CO. INCORPORATED, CITIGROUP GLOBAL MARKETS INC., J.P.
MORGAN SECURITIES INC.
and HSBC
SECURITIES (USA) INC.,
as Underwriters

 

 

 

By:  MORGAN STANLEY & CO.

 

INCORPORATED

 

 

 

By:

/s/ Michael Evans

 

Name:  Michael Evans

 

Title:    Executive Director

 

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Pass Through Trustee for and on behalf of JetBlue Airways Pass Through Trust 2004-2G-1-O

 

 

 

By:

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

 

 

WILMINGTON TRUST COMPANY, as
Paying Agent

 

 

 

By:

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

14



 

EXHIBIT A

 

JETBLUE AIRWAYS 2004-2G-1 ESCROW RECEIPT

 

No.      

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class G-1) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 

1



 

The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*     *     *

 

2



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                , 2004

 

 

WILMINGTON TRUST COMPANY, as Escrow Agent

 

 

 

By:

 

 

Name:

 

Title:

 

3



 

EXHIBIT B

 

WITHDRAWAL CERTIFICATE

(Class G-1)

 

WILMINGTON TRUST COMPANY,

as Escrow Agent

 

Dear Sirs:

 

Reference is made to the Escrow and Paying Agent Agreement, dated as of November 15, 2004 (the “Agreement”).  [We hereby certify to you that the conditions to the obligations of the undersigned to execute a Participation Agreement pursuant to the Note Purchase Agreement have been satisfied] [We hereby notify you that the Depositary is being replaced in accordance with Section 4(a)(v) of the Note Purchase Agreement].  Pursuant to Section 1.02(c) of the Agreement, please execute the attached Notice of Purchase Withdrawal and immediately transmit by facsimile to the Depositary, at (212) 407-6033, Attention:  Transportation – Americas.

 

 

Very truly yours,

 

 

 

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Pass Through Trustee

 

 

 

By:

 

 

Name:

 

Title:

 

Dated:           , 200   

 

1


EX-4.12 14 a04-11378_4ex4d12.htm EX-4.12

Exhibit 4.12

 

EXECUTION COPY

 

ESCROW AND
PAYING AGENT AGREEMENT (CLASS G-2)

 

dated as of November 15, 2004

 

among

 

WILMINGTON TRUST COMPANY

as Escrow Agent

 

MORGAN STANLEY & CO. INCORPORATED

 

CITIGROUP GLOBAL MARKETS INC.

 

J.P. MORGAN SECURITIES, INC.

 

and

 

HSBC SECURITIES (USA) INC.

as Underwriters

 

WILMINGTON TRUST COMPANY,

not in its individual capacity,

but solely as Pass Through Trustee

for and on behalf of

JetBlue Airways Pass Through Trust 2004-2G-2-O

as Pass Through Trustee

 

and

 

WILMINGTON TRUST COMPANY

as Paying Agent

 



 

TABLE OF CONTENTS

 

Section 1.

Escrow Agent

 

1.01.

Appointment of Escrow Agent

 

1.02.

Instruction; Etc

 

1.03.

Initial Escrow Amount; Issuance of Escrow Receipts

 

1.04.

Payments to Receiptholders; Notice to Depositary

 

1.05.

Mutilated, Destroyed, Lost or Stolen Escrow Receipt

 

1.06.

Additional Escrow Amounts

 

1.07.

Resignation or Removal of Escrow Agent

 

1.08.

Persons Deemed Owners

 

1.09.

Further Assurances

 

 

 

 

Section 2.

Paying Agent

 

2.01.

Appointment of Paying Agent

 

2.02.

Establishment of Paying Agent Account

 

2.03.

Payments from Paying Agent Account

 

2.04.

Withholding Taxes

 

2.05.

Resignation or Removal of Paying Agent

 

2.06.

Notice of Final Withdrawal

 

 

 

 

Section 3.

Payments

 

 

 

 

Section 4.

Other Actions

 

 

 

 

Section 5.

Representations and Warranties of the Escrow Agent

 

 

 

 

Section 6.

Representations and Warranties of the Paying Agent

 

 

 

 

Section 7.

Indemnification

 

 

 

 

Section 8.

Amendment, Etc

 

 

 

 

Section 9.

Notices

 

 

 

 

Section 10.

Transfer

 

 

 

 

Section 11.

Entire Agreement

 

 

 

 

Section 12.

Governing Law

 

 

 

 

Section 13.

Waiver of Jury Trial Right

 

 

 

 

Section 14.

Counterparts

 

 

 

 

Exhibit A

Escrow Receipt

 

Exhibit B

Withdrawal Certificate

 

 

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ESCROW AND PAYING AGENT AGREEMENT (CLASS G-2)

 

ESCROW AND PAYING AGENT AGREEMENT (Class G-2) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, this “Agreement”) among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); MORGAN STANLEY & CO. INCORPORATED, CITIGROUP GLOBAL MARKETS INC. J.P. MORGAN SECURITIES INC. and HSBC SECURITIES (USA) INC., as Underwriters (the “Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) under the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity except as otherwise expressly provided herein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as paying agent hereunder (in such capacity, together with its successors in such capacity, the “Paying Agent”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and the Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as of November 15, 2004 (together, as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2G-2-O (the “Pass Through Trust”) pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2G-2-O Certificates referred to therein (the “Certificates”) are being issued;

 

WHEREAS, JetBlue and the Underwriters have entered into an Underwriting Agreement dated November 9, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Underwriters Agreement”) pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors, subject to withdrawal upon request by the Pass Through Trustee and satisfaction of the conditions set forth in the Note Purchase Agreement for the purpose of purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited on behalf of the Escrow Agent with HSH Nordbank AG, acting through its New York Branch, a New York State licensed branch office of a Landesbank organized under the laws of Germany, as Depositary (the “Depositary

 



 

which shall also be deemed to refer to any Replacement Depositary (as defined in the Note Purchase Agreement) from and after the date on which the Deposits are transferred to such Replacement Depositary) under the Deposit Agreement, dated as of the date hereof between the Depositary and the Escrow Agent relating to the Pass Through Trust (as amended, modified, supplemented or replaced from time to time in accordance with the terms thereof, the “Deposit Agreement” which shall also be deemed to refer to any Replacement Deposit Agreement (as defined in the Note Purchase Agreement) to which the Escrow Agent becomes a party pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits from the Depositary to the Replacement Depositary) pursuant to which, among other things, the Depositary will pay interest for distribution to the Investors and establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee;

 

WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay amounts required to be distributed to the Investors in accordance with this Agreement; and

 

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Pass Through Trust Agreement.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.                                          Escrow Agent.

 

1.01.                        Appointment of Escrow Agent.  Each of the Underwriters, for and on behalf of each of the Investors, hereby irrevocably appoints, authorizes and directs the Escrow Agent to act as escrow agent and fiduciary hereunder and under the Deposit Agreement for such specific purposes and with such powers as are specifically delegated to the Escrow Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Escrow Agent under this Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent in accordance with the terms of this Agreement.  This Agreement is irrevocable and the Investors’ rights with respect to any monies received and held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement shall only be as provided under the terms and conditions of this Agreement and the Deposit Agreement.  The Escrow Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement; (b) shall not be responsible to the Pass Through Trustee or the Investors for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or the Deposit Agreement or for the failure by the Pass Through Trustee, the investors or any other person or entity (other than the Escrow Agent) to perform any of its obligations hereunder (whether or not the Escrow Agent shall have any knowledge thereof); and (c) shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement) or breach of its obligations hereunder.

 

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1.02.                        Instruction; Etc.  The Underwriters, for and on behalf of each of the Investors, hereby irrevocably instruct the Escrow Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and, if requested by the Company pursuant to Section 4(a)(v) of the Note Purchase Agreement, to enter into a Replacement Deposit Agreement with the Replacement Depositary specified by the Company, (b) to appoint the Paying Agent as provided in this Agreement, (c) upon receipt at any time and from time to time prior to the Termination Date (as defined below) of a certificate substantially in the form of Exhibit B hereto (a “Withdrawal Certificate”) executed by the Pass Through Trustee, together with an attached Notice of Purchase Withdrawal in substantially the form of Exhibit A to the Deposit Agreement duly completed by the Pass Through Trustee (the “Applicable Notice of Purchase Withdrawal” and the withdrawal to which it relates, a “Purchase Withdrawal”), immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to the Depositary by facsimile transmission in accordance with the Deposit Agreement; provided that, upon the request of the Pass Through Trustee after such transmission, the Escrow Agent shall cancel such Applicable Notice of Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by the Pass Through Trustee, together with an attached Notice of Replacement Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly completed by the Pass Through Trustee, to (X) give such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal, on the date specified in such notice, which shall not be less than 15 days after such notice is given (the “Replacement Withdrawal Date”), of all Deposits then held by the Depositary together with, if the Replacement Withdrawal Date occurs on a Regular Distribution Date, all accrued and unpaid interest on such Deposits to but excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to transfer such Deposits on behalf of the Escrow Agent to the Replacement Depositary in accordance with the Replacement Deposit Agreement, and (e) if there are any undrawn Deposits (as defined in the Deposit Agreement) on the “Termination Date”, which shall mean the earlier of (i) the Delivery Period Termination Date (as defined in the Note Purchase Agreement) and (ii) the day on which the Escrow Agent receives notice from the Pass Through Trustee that the Pass Through Trustee’s obligation to purchase Equipment Notes under the Note Purchase Agreement has terminated, to give notice to the Depositary (with a copy to the Paying Agent) substantially in the form of Exhibit B to the Deposit Agreement requesting a withdrawal of all of the remaining Deposits, together with accrued and unpaid interest on such Deposits to the date of withdrawal, on the 25th day after the date that such notice of withdrawal is given to the Depositary (or, if not a Business Day, on the next succeeding Business Day) (a “Final Withdrawal”), provided that if the day scheduled for the Final Withdrawal in accordance with the foregoing is within 10 days before or after a Regular Distribution Date, then the Escrow Agent shall request that such requested Final Withdrawal be made on such Regular Distribution Date (the date of such requested withdrawal, the “Final Withdrawal Date”).  If for any reason the Escrow Agent shall have failed to give the Final Withdrawal notice to the Depositary on or before June 5, 2006, and there are unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed to be June 30, 2006.

 

1.03.                        Initial Escrow Amount; Issuance of Escrow Receipts.  The Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby acknowledge that on the date hereof they shall, irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount in U.S. dollars (“Dollars”) and immediately available funds equal to $185,418,000, for deposit on behalf of the Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit Agreement.  The Underwriters hereby instruct the Escrow Agent, upon receipt of such sum from

 

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the Underwriters, to confirm such receipt by executing and delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an “Escrow Receipt”), (a) to be affixed by the Pass Through Trustee to each Certificate and (b) to evidence the same percentage interest (the “Escrow Interest”) in the Account Amounts (as defined below) as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which it is to be affixed.  The Escrow Agent shall provide to the Pass Through Trustee for attachment to each Certificate newly issued under and in accordance with the Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may from time to time request of the Escrow Agent.  Each Escrow Receipt shall be registered by the Escrow Agent in a register (the “Register”) maintained by the Escrow Agent in the same name and same manner as the Certificate to which it is attached and may not thereafter be detached from such Certificate to which it is to be affixed prior to the distribution of the Final Withdrawal (the “Final Distribution”).  After the Final Distribution, no additional Escrow Receipts shall be issued and the Pass Through Trustee shall request the return to the Escrow Agent for cancellation of all outstanding Escrow Receipts.

 

1.04.                        Payments to Receiptholders; Notice to Depositary.  All payments and distributions made to holders of an Escrow Receipt (collectively “Receiptholders”) in respect of the Escrow Receipt shall be made only from amounts deposited in the Paying Agent Account (as defined below) (“Account Amounts”).  Each Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will look solely to the Account Amounts for any payment or distribution due to such Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement and (b) it will have no recourse to JetBlue, the Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust Company, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account or the obligations of the parties hereto, nor shall anything set forth herein, or contained in the terms of the Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

No later than four Business Days prior to each Regular Distribution Date, the Escrow Agent shall provide a notice to the Depositary specifying the amount of interest due on the Deposits on such Regular Distribution Date.

 

1.05.                        Mutilated, Destroyed, Lost or Stolen Escrow Receipt.  If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow Agent receives evidence to its satisfaction of the destruction, loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and the Pass Through Trustee such security, indemnity or bond, as may be required by them to hold each of them harmless, then, absent notice to the Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt has been acquired by a bona fide purchaser, and provided that the requirements of Section 8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow Interest in the Account Amounts and bearing a number not contemporaneously outstanding.

 

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In connection with the issuance of any new Escrow Receipt under this Section 1.05, the Escrow Agent may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Pass Through Trustee and the Escrow Agent) connected therewith.

 

Any duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in the Account Amounts, as if originally issued, whether or not the lost, stolen or destroyed Escrow Receipt shall be found at any time.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Escrow Receipts.

 

1.06.                        Additional Escrow Amounts.  On the date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or all of the amounts so withdrawn in accordance with Section 2.6 of the Deposit Agreement.

 

1.07.                        Resignation or Removal of Escrow Agent.  Subject to the appointment and acceptance of a successor Escrow Agent as provided below, the Escrow Agent may resign at any time by giving 30 days’ prior written notice thereof to the Investors, but may not otherwise be removed except for cause by the written consent of the Investors with respect to Investors representing Escrow Interests aggregating not less than a majority in interest in the Account Amounts (an “Action of Investors”).  Upon any such resignation or removal, the Investors, by an Action of Investors, shall have the right to appoint a successor Escrow Agent.  If no successor Escrow Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Escrow Agent’s giving of notice of resignation or the removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor Escrow Agent.  Any successor Escrow Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall enter into such documents as the Pass Through Trustee shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations hereunder.  No resignation or removal of the Escrow Agent shall be effective unless a written confirmation shall have been obtained from each of Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow Agent with the successor Escrow Agent will not result in (a) a reduction of the rating for the Certificates below the then current rating for the Certificates (without regard to the Policy) or (b) a withdrawal or suspension of the rating of the Certificates.

 

1.08.                        Persons Deemed Owners.  Prior to due presentment of a Certificate for registration of transfer, the Escrow Agent and the Paying Agent may treat the Person in whose name any Escrow Receipt is registered (as of the day of determination) as the owner of such Escrow Receipt for the purpose of receiving distributions pursuant to this Agreement and for all other purposes whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected by any notice to the contrary.

 

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1.09.                        Further Assurances.  The Escrow Agent agrees to take such actions, and execute such other documents, as may be reasonably requested by the Pass Through Trustee in order to effectuate the purposes of this Agreement and the performance by the Escrow Agent of its obligations hereunder.

 

Section 2.                                          Paying Agent.

 

2.01.                        Appointment of Paying Agent.  The Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to act as its paying agent hereunder, for the benefit of the Investors, for such specific purposes and with such powers as are specifically delegated to the Paying Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Paying Agent under this Agreement or the Deposit Agreement shall be held in the Paying Agent Account for the benefit of the Investors.  The Paying Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement, and shall not by reason of this Agreement be a trustee for the Escrow Agent; (b) shall not be responsible to the Escrow Agent for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or for the failure by the Escrow Agent or any other person or entity (other than the Paying Agent) to perform any of its obligations hereunder (whether or not the Paying Agent shall have any knowledge thereof); and (c) except in respect of its express obligations hereunder, shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement).

 

2.02.                        Establishment of Paying Agent Account.  The Paying Agent shall establish a deposit account (the “Paying Agent Account”) at Wilmington Trust Company in the name of the Escrow Agent.  It is expressly understood by the parties hereto that the Paying Agent is acting as the paying agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying Agent Account constitute part of the Trust Property.

 

2.03.                        Payments from Paying Agent Account.  The Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to act, as follows:

 

(a)                                  On each Interest Payment Date (as defined in the Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account from the Depositary of any amount in respect of accrued interest on the Deposits, the Paying Agent shall distribute out of the Paying Agent Account the entire amount deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding such Interest Payment Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount of interest deposited by the Depositary in the Paying Agent Account on such date, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

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(b)                                 Upon the confirmation by the Paying Agent of receipt in the Paying Agent Account from the Depositary of any amount in respect of the Final Withdrawal, the Paying Agent shall forthwith distribute the entire amount of the Final Withdrawal deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding the Final Withdrawal Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount in the Paying Agent Account on account of such Final Withdrawal, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

(c)                                  If any payment of interest or principal in respect of the Final Withdrawal is not received by the Paying Agent within five days of the applicable date when due, then it shall be distributed to Receiptholders after actual receipt by the Paying Agent on the same basis as a Special Payment is distributed under the Pass Through Trust Agreement.

 

(d)                                 The Paying Agent shall include with any check mailed pursuant to this Section any notice required to be distributed under the Pass Through Trust Agreement that is furnished to the Paying Agent by the Pass Through Trustee.

 

(e)                                  In connection with any distribution made by the Paying Agent pursuant to this Section 2.03, if at the time of such distribution the Paying Agent and the Pass Through Trustee are not the same Person, the Paying Agent shall send to the Pass Through Trustee a report stating the aggregate amount of funds distributed by the Paying Agent hereunder and the amount allocable to principal, interest and any unused Deposits.

 

2.04.                        Withholding Taxes.  The Paying Agent shall exclude and withhold from each distribution of accrued interest on the Deposits (as defined in the Deposit Agreement) and any amount in respect of the Final Withdrawal any and all withholding taxes applicable thereto as required by law.  The Paying Agent agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Deposits (as defined in the Deposit Agreement) or the escrow amounts, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Receiptholders, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each such Receiptholder appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Receiptholder may reasonably request from time to time.  The Paying Agent agrees to file any other information reports as it may be required to file under United States law.

 

2.05.                        Resignation or Removal of Paying Agent.  Subject to the appointment and acceptance of a successor Paying Agent as provided below, the Paying Agent may resign at anytime by giving 30 days’ prior written notice thereof to the Escrow Agent, but may not otherwise be removed except for cause by the Escrow Agent.  Upon any such resignation or removal, the Escrow Agent shall have the right to appoint a successor Paying Agent.  If no successor Paying Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Paying Agent’s giving of notice of resignation or the removal of

 

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the retiring Paying Agent, then the retiring Paying Agent may appoint a successor Paying Agent.  Any Successor Paying Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Paying Agent hereunder by a successor Paying Agent, such successor Paying Agent shall enter into such documents as the Escrow Agent shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent, and the retiring Paying Agent shall be discharged from its duties and obligations hereunder.

 

2.06.                        Notice of Final Withdrawal.  Promptly after receipt by the Paying Agent of notice that the Escrow Agent has requested a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall cause notice of the distribution of such Final Withdrawal to be mailed to each of the Receiptholders at its address as it appears in the Register.  Such notice shall be mailed not less than 20 days prior to the Final Withdrawal Date.  Such notice shall set forth:

 

(i)                                     the Final Withdrawal Date and the date for determining Receiptholders of record who shall be entitled to receive distributions in respect of such Final Withdrawal,

 

(ii)                                  the amount of the payment in respect of such Final Withdrawal for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee) and the amount thereof constituting unused Deposits (as defined in the Deposit Agreement) and interest thereon, and

 

(iii)                               if the Final Withdrawal Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee).

 

Such mailing may include any notice required to be given to Certificateholders in connection with such distribution pursuant to the Pass Through Trust Agreement.

 

Section 3.                                          Payments.  If, notwithstanding the instructions in Section 4 of the Deposit Agreement that all amounts payable to the Escrow Agent under the Deposit Agreement be paid by the Depositary directly to the Paying Agent or the Pass Through Trustee or a Replacement Depositary (depending on the circumstances), the Escrow Agent receives any payment thereunder, then the Escrow Agent shall forthwith pay such amount in Dollars and in immediately available funds by wire transfer to (a) in the case of a payment of accrued interest on the Deposits (as defined in the Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent Account and (b) in the case of any Purchase Withdrawal, directly to the Pass Through Trustee or its designee as specified and in the manner provided in the Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement Withdrawal (other than accrued interest), to the Replacement Depositary as provided in the Replacement Depositary Agreement.  The Escrow Agent hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against amounts payable to the Paying Agent howsoever arising.

 

Section 4.                                          Other Actions.  The Escrow Agent shall take such other actions under or in respect of the Deposit Agreement (including, without limitation, the enforcement of the

 

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obligations of the Depositary thereunder) as the Investors, by an Action of Investors, may from time to time request.

 

Section 5.                                          Representations and Warranties of the Escrow Agent.  The Escrow Agent represents and warrants to JetBlue, the Investors, the Paying Agent and the Pass Through Trustee as follows:

 

(i)                                     it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement, the Deposit Agreement and any Replacement Deposit Agreement;

 

(iii)                               the execution, delivery and performance of each of this Agreement, the Deposit Agreement and any Replacement Deposit Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and each such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof or thereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)                              no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement;

 

(v)                                 neither the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement, nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(vi)                              there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which,

 

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if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or the Deposit Agreement or any Replacement Deposit Agreement or (B) would call into question or challenge the validity of this Agreement or the Deposit Agreement or the enforceability hereof or thereof in accordance with the terms hereof or thereof, nor is the Escrow Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement or the Deposit Agreement.

 

Section 6.                                          Representations and Warranties of the Paying Agent.  The Paying Agent represents and warrants to JetBlue, the Investors, the Escrow Agent and the Pass Through Trustee as follows:

 

(i)                                     it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(iii)                               the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of it and does not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)                              no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

(v)                                 neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

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(vi)                              there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or (B) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Paying Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 7.                                          Indemnification.  Except for actions expressly required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the Paying Agent shall in all cases be fully justified in failing or refusing to act hereunder unless it shall have been indemnified (both in such capacities and individually) by the party requesting such action in a manner reasonably satisfactory to it against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  In the event JetBlue requests any amendment to any Operative Agreement (as defined in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all reasonable fees and expenses (including, without limitation, fees and disbursements of counsel) of the Escrow Agent and the Paying Agent in connection therewith.

 

Section 8.                                          Amendment, Etc.  Upon request of the Pass Through Trustee and approval by an Action of Investors, the Escrow Agent shall enter into an amendment to this Agreement, so long as such amendment does not adversely affect the rights or obligations of the Escrow Agent or the Paying Agent, provided that upon request of the Pass Through Trustee and without any consent of the Investors, the Escrow Agent shall enter into an amendment to this Agreement for any of the following purposes:

 

(1)                                  to correct or supplement any provision in this Agreement which may be defective or inconsistent with any other provision herein or to cure any ambiguity or correct any mistake or to modify any other provision with respect to matters or questions arising under this Agreement, provided that any such action shall not materially adversely affect the interests of the Investors; or

 

(2)                                  to comply with any requirement of the SEC, applicable law, rules or regulations of any exchange or quotation system on which the Certificates are listed or any regulatory body; or

 

(3)                                  to evidence and provide for the acceptance of appointment under this Agreement of a successor Escrow Agent, successor Paying Agent or successor Pass Through Trustee.

 

Section 9.                                          Notices.  Unless otherwise expressly provided herein, any notice or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received outside of business hours, at the opening of business on the next Business Day).  All notices shall be sent to (a) in the case of the Investors, as their respective addresses shall appear in the Register, (b) in the case of the

 

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Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), (c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), or (d) in the case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), in each case with a copy to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  Vice President – Corporate Finance (Telecopier:  718-709-3639) with a copy to:  JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  General Counsel (Telecopier:  718-709-3631) (or at such other address as any such party may specify from time to time in a written notice to the other parties).  On or prior to the execution of this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a certificate containing specimen signatures of the representatives of the Pass Through Trustee who are authorized to give notices and instructions with respect to this Agreement.  The Escrow Agent may conclusively rely on such certificate until the Escrow Agent receives written notice from the Pass Through Trustee to the contrary.

 

Section 10.                                   Transfer.  No party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under Section 1.07 hereof or (in the case of the Paying Agent) to a successor paying agent under Section 2.05 hereof, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent and the Paying Agent) their respective permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights and obligations of the “Pass Through Trustee” hereunder and each reference herein to “JetBlue Airways Pass Through Trust “2004-2G-2-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2G-2-S”.  The parties hereto hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  As used herein, “Transfer” means the transfers of the assets to the Successor Trust contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2G-2-S.

 

Section 11.                                   Entire Agreement.  This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings among the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 12.                                   Governing Law.  This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.

 

12



 

Section 13.                                   Waiver of Jury Trial RightEACH OF THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 14.                                   Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*     *     *

 

13



 

IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class G-2) to be duly executed as of the day and year first above written.

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

By.

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

 

 

MORGAN STANLEY & CO. INCORPORATED, CITIGROUP
GLOBAL MARKETS INC., J.P.
MORGAN SECURITIES INC.
and HSBC
SECURITIES (USA) INC.,
as Underwriters

 

 

 

By:   MORGAN STANLEY & CO.
INCORPORATED

 

 

 

By:

/s/ Michael Evans

 

Name:  Michael Evans

 

Title:    Executive Director

 

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity, but solely as Pass
Through Trustee for and on behalf of JetBlue
Airways Pass Through Trust 2004-2G-2-O

 

 

 

By:

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

 

 

WILMINGTON TRUST COMPANY, as
Paying Agent

 

 

 

By:

/s/ W. Chris Sponenberg

 

Name:  W. Chris Sponenberg

 

Title:     Vice President

 

14



 

EXHIBIT A

 

JETBLUE AIRWAYS 2004-2G-2 ESCROW RECEIPT

 

No.      

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class G-2) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 

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The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*     *     *

 

2



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                , 2004

 

 

WILMINGTON TRUST COMPANY, as Escrow Agent

 

 

 

By:

 

 

Name:

 

Title:

 

3



 

EXHIBIT B

 

WITHDRAWAL CERTIFICATE

(Class G-2)

 

WILMINGTON TRUST COMPANY,

as Escrow Agent

Dear Sirs:

 

Reference is made to the Escrow and Paying Agent Agreement, dated as of November 15, 2004 (the “Agreement”).  [We hereby certify to you that the conditions to the obligations of the undersigned to execute a Participation Agreement pursuant to the Note Purchase Agreement have been satisfied] [We hereby notify you that the Depositary is being replaced in accordance with Section 4(a)(v) of the Note Purchase Agreement].  Pursuant to Section 1.02(c) of the Agreement, please execute the attached Notice of Purchase Withdrawal and immediately transmit by facsimile to the Depositary, at (212) 407-6033, Attention:  Transportation –

 Americas.

 

 

Very truly yours,

 

 

 

 

 

WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Pass Through Trustee

 

 

 

By:

 

 

Name:

 

Title:

 

Dated:             , 200   

1


EX-4.13 15 a04-11378_4ex4d13.htm EX-4.13

Exhibit 4.13

 

EXECUTION COPY

 

ESCROW AND
PAYING AGENT AGREEMENT (CLASS C)

 

dated as of November 15, 2004

 

among

 

WILMINGTON TRUST COMPANY
as Escrow Agent

 

MORGAN STANLEY & CO. INCORPORATED

 

CITIGROUP GLOBAL MARKETS INC.

 

J.P. MORGAN SECURITIES, INC.

 

and

 

HSBC SECURITIES (USA) INC.
as Underwriters

 

WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
JetBlue Airways Pass Through Trust 2004-2C-O
as Pass Through Trustee

 

and

 

WILMINGTON TRUST COMPANY
as Paying Agent

 



 

TABLE OF CONTENTS

 

Section 1.

 

Escrow Agent

 

1.01.

 

Appointment of Escrow Agent

 

1.02.

 

Instruction; Etc

 

1.03.

 

Initial Escrow Amount; Issuance of Escrow Receipts

 

1.04.

 

Payments to Receiptholders; Notice to Depositary

 

1.05.

 

Mutilated, Destroyed, Lost or Stolen Escrow Receipt

 

1.06.

 

Additional Escrow Amounts

 

1.07.

 

Resignation or Removal of Escrow Agent

 

1.08.

 

Persons Deemed Owners

 

1.09.

 

Further Assurances

 

 

 

 

 

Section 2.

 

Paying Agent

 

2.01.

 

Appointment of Paying Agent

 

2.02.

 

Establishment of Paying Agent Account

 

2.03.

 

Payments from Paying Agent Account

 

2.04.

 

Withholding Taxes

 

2.05.

 

Resignation or Removal of Paying Agent

 

2.06.

 

Notice of Final Withdrawal

 

 

 

 

 

Section 3.

 

Payments

 

 

 

 

 

Section 4.

 

Other Actions

 

 

 

 

 

Section 5.

 

Representations and Warranties of the Escrow Agent

 

 

 

 

 

Section 6.

 

Representations and Warranties of the Paying Agent

 

 

 

 

 

Section 7.

 

Indemnification

 

 

 

 

 

Section 8.

 

Amendment, Etc

 

 

 

 

 

Section 9.

 

Notices

 

 

 

 

 

Section 10.

 

Transfer

 

 

 

 

 

Section 11.

 

Entire Agreement

 

 

 

 

 

Section 12.

 

Governing Law

 

 

 

 

 

Section 13.

 

Waiver of Jury Trial Right

 

 

 

 

 

Section 14.

 

Counterparts

 

 

 

 

 

Exhibit A

 

Escrow Receipt

 

Exhibit B

 

Withdrawal Certificate

 

 

i



 

ESCROW AND PAYING AGENT AGREEMENT (CLASS C)

 

ESCROW AND PAYING AGENT AGREEMENT (Class C) dated as of November    , 2004 (as amended, modified or supplemented from time to time, this “Agreement”) among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”); MORGAN STANLEY & CO. INCORPORATED, CITIGROUP GLOBAL MARKETS INC. J.P. MORGAN SECURITIES INC. and HSBC SECURITIES (USA) INC., as Underwriters (the “Underwriters” and together with their respective transferees and assigns as registered owners of the Certificates, the “Investors”) under the Underwriting Agreement referred to below; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity except as otherwise expressly provided herein, but solely as trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) under the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as paying agent hereunder (in such capacity, together with its successors in such capacity, the “Paying Agent”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue Airways Corporation (“JetBlue”) and the Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as of November 15, 2004 (together, as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Pass Through Trust Agreement”) relating to JetBlue Airways Pass Through Trust 2004-2C-O (the “Pass Through Trust”) pursuant to which the JetBlue Airways Pass Through Trust, Series 2004-2C-O Certificates referred to therein (the “Certificates”) are being issued;

 

WHEREAS, JetBlue and the Underwriters have entered into an Underwriting Agreement dated November 9, 2004 (as amended, modified or supplemented from time to time in accordance with the terms thereof, the “Underwriters Agreement”) pursuant to which the Pass Through Trustee will issue and sell the Certificates to the Underwriters (the net proceeds of such sale being herein referred to as the “Net Proceeds”);

 

WHEREAS, JetBlue, the Pass Through Trustee, certain other pass through trustees and certain other persons concurrently herewith are entering into the Note Purchase Agreement, dated as of the date hereof (the “Note Purchase Agreement”), pursuant to which the Pass Through Trustee has agreed to acquire from time to time on or prior to the Delivery Period Termination Date (as defined in the Note Purchase Agreement) equipment notes (the “Equipment Notes”) issued to finance or refinance the acquisition of aircraft by JetBlue utilizing a portion of the Net Proceeds;

 

WHEREAS, the Underwriters and the Pass Through Trustee intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the Investors, subject to withdrawal upon request by the Pass Through Trustee and satisfaction of the conditions set forth in the Note Purchase Agreement for the purpose of purchasing Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited on behalf of the Escrow Agent with HSH Nordbank AG, acting through its New York Branch, a New York State licensed branch office of a Landesbank organized under the laws of Germany, as Depositary (the “Depositary

 



 

which shall also be deemed to refer to any Replacement Depositary (as defined in the Note Purchase Agreement) from and after the date on which the Deposits are transferred to such Replacement Depositary) under the Deposit Agreement, dated as of the date hereof between the Depositary and the Escrow Agent relating to the Pass Through Trust (as amended, modified, supplemented or replaced from time to time in accordance with the terms thereof, the “Deposit Agreement” which shall also be deemed to refer to any Replacement Deposit Agreement (as defined in the Note Purchase Agreement) to which the Escrow Agent becomes a party pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits from the Depositary to the Replacement Depositary) pursuant to which, among other things, the Depositary will pay interest for distribution to the Investors and establish accounts from which the Escrow Agent shall make withdrawals upon request of and proper certification by the Pass Through Trustee;

 

WHEREAS, the Escrow Agent wishes to appoint the Paying Agent to pay amounts required to be distributed to the Investors in accordance with this Agreement; and

 

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Pass Through Trust Agreement.

 

NOW, THEREFORE, in consideration of the obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1.                                          Escrow Agent.

 

1.01.                        Appointment of Escrow Agent.  Each of the Underwriters, for and on behalf of each of the Investors, hereby irrevocably appoints, authorizes and directs the Escrow Agent to act as escrow agent and fiduciary hereunder and under the Deposit Agreement for such specific purposes and with such powers as are specifically delegated to the Escrow Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Escrow Agent under this Agreement or the Deposit Agreement shall be held in escrow by the Escrow Agent in accordance with the terms of this Agreement.  This Agreement is irrevocable and the Investors’ rights with respect to any monies received and held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement shall only be as provided under the terms and conditions of this Agreement and the Deposit Agreement.  The Escrow Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement; (b) shall not be responsible to the Pass Through Trustee or the Investors for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or the Deposit Agreement or for the failure by the Pass Through Trustee, the investors or any other person or entity (other than the Escrow Agent) to perform any of its obligations hereunder (whether or not the Escrow Agent shall have any knowledge thereof); and (c) shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement) or breach of its obligations hereunder.

 

2



 

1.02.                        Instruction; Etc.  The Underwriters, for and on behalf of each of the Investors, hereby irrevocably instruct the Escrow Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and, if requested by the Company pursuant to Section 4(a)(v) of the Note Purchase Agreement, to enter into a Replacement Deposit Agreement with the Replacement Depositary specified by the Company, (b) to appoint the Paying Agent as provided in this Agreement, (c) upon receipt at any time and from time to time prior to the Termination Date (as defined below) of a certificate substantially in the form of Exhibit B hereto (a “Withdrawal Certificate”) executed by the Pass Through Trustee, together with an attached Notice of Purchase Withdrawal in substantially the form of Exhibit A to the Deposit Agreement duly completed by the Pass Through Trustee (the “Applicable Notice of Purchase Withdrawal” and the withdrawal to which it relates, a “Purchase Withdrawal”), immediately to execute the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to the Depositary by facsimile transmission in accordance with the Deposit Agreement; provided that, upon the request of the Pass Through Trustee after such transmission, the Escrow Agent shall cancel such Applicable Notice of Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by the Pass Through Trustee, together with an attached Notice of Replacement Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly completed by the Pass Through Trustee, to (X) give such Notice of Replacement Withdrawal to the Depositary requesting a withdrawal, on the date specified in such notice, which shall not be less than 15 days after such notice is given (the “Replacement Withdrawal Date”), of all Deposits then held by the Depositary together with, if the Replacement Withdrawal Date occurs on a Regular Distribution Date, all accrued and unpaid interest on such Deposits to but excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to transfer such Deposits on behalf of the Escrow Agent to the Replacement Depositary in accordance with the Replacement Deposit Agreement, and (e) if there are any undrawn Deposits (as defined in the Deposit Agreement) on the “Termination Date”, which shall mean the earlier of (i) the Delivery Period Termination Date (as defined in the Note Purchase Agreement) and (ii) the day on which the Escrow Agent receives notice from the Pass Through Trustee that the Pass Through Trustee’s obligation to purchase Equipment Notes under the Note Purchase Agreement has terminated, to give notice to the Depositary (with a copy to the Paying Agent) substantially in the form of Exhibit B to the Deposit Agreement requesting a withdrawal of all of the remaining Deposits, together with accrued and unpaid interest on such Deposits to the date of withdrawal, on the 25th day after the date that such notice of withdrawal is given to the Depositary (or, if not a Business Day, on the next succeeding Business Day) (a “Final Withdrawal”), provided that if the day scheduled for the Final Withdrawal in accordance with the foregoing is within 10 days before or after a Regular Distribution Date, then the Escrow Agent shall request that such requested Final Withdrawal be made on such Regular Distribution Date (the date of such requested withdrawal, the “Final Withdrawal Date”).  If for any reason the Escrow Agent shall have failed to give the Final Withdrawal notice to the Depositary on or before June 5, 2006, and there are unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed to be June 30, 2006.

 

1.03.                        Initial Escrow Amount; Issuance of Escrow Receipts.  The Escrow Agent hereby directs the Underwriters to, and the Underwriters hereby acknowledge that on the date hereof they shall, irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount in U.S. dollars (“Dollars”) and immediately available funds equal to $136,066,000, for deposit on behalf of the Escrow Agent with the Depositary in accordance with Section 2.1 of the Deposit Agreement.  The Underwriters hereby instruct the Escrow Agent, upon receipt of such sum from

 

3



 

the Underwriters, to confirm such receipt by executing and delivering to the Pass Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an “Escrow Receipt”), (a) to be affixed by the Pass Through Trustee to each Certificate and (b) to evidence the same percentage interest (the “Escrow Interest”) in the Account Amounts (as defined below) as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which it is to be affixed.  The Escrow Agent shall provide to the Pass Through Trustee for attachment to each Certificate newly issued under and in accordance with the Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may from time to time request of the Escrow Agent.  Each Escrow Receipt shall be registered by the Escrow Agent in a register (the “Register”) maintained by the Escrow Agent in the same name and same manner as the Certificate to which it is attached and may not thereafter be detached from such Certificate to which it is to be affixed prior to the distribution of the Final Withdrawal (the “Final Distribution”).  After the Final Distribution, no additional Escrow Receipts shall be issued and the Pass Through Trustee shall request the return to the Escrow Agent for cancellation of all outstanding Escrow Receipts.

 

1.04.                        Payments to Receiptholders; Notice to Depositary.  All payments and distributions made to holders of an Escrow Receipt (collectively “Receiptholders”) in respect of the Escrow Receipt shall be made only from amounts deposited in the Paying Agent Account (as defined below) (“Account Amounts”).  Each Receiptholder, by its acceptance of an Escrow Receipt, agrees that (a) it will look solely to the Account Amounts for any payment or distribution due to such Receiptholder pursuant to the terms of the Escrow Receipt and this Agreement and (b) it will have no recourse to JetBlue, the Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust Company, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account or the obligations of the parties hereto, nor shall anything set forth herein, or contained in the terms of the Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

No later than four Business Days prior to each Regular Distribution Date, the Escrow Agent shall provide a notice to the Depositary specifying the amount of interest due on the Deposits on such Regular Distribution Date.

 

1.05.                        Mutilated, Destroyed, Lost or Stolen Escrow Receipt.  If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent or the Escrow Agent receives evidence to its satisfaction of the destruction, loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow Agent and the Pass Through Trustee such security, indemnity or bond, as may be required by them to hold each of them harmless, then, absent notice to the Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen Escrow Receipt has been acquired by a bona fide purchaser, and provided that the requirements of Section 8-405 of the Uniform Commercial Code in effect in any applicable jurisdiction are met, the Escrow Agent shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like Escrow Interest in the Account Amounts and bearing a number not contemporaneously outstanding.

 

4



 

In connection with the issuance of any new Escrow Receipt under this Section 1.05, the Escrow Agent may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Pass Through Trustee and the Escrow Agent) connected therewith.

 

Any duplicate Escrow Receipt issued pursuant to this Section 1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in the Account Amounts, as if originally issued, whether or not the lost, stolen or destroyed Escrow Receipt shall be found at any time.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Escrow Receipts.

 

1.06.                        Additional Escrow Amounts.  On the date of any Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary some or all of the amounts so withdrawn in accordance with Section 2.6 of the Deposit Agreement.

 

1.07.                        Resignation or Removal of Escrow Agent.  Subject to the appointment and acceptance of a successor Escrow Agent as provided below, the Escrow Agent may resign at any time by giving 30 days’ prior written notice thereof to the Investors, but may not otherwise be removed except for cause by the written consent of the Investors with respect to Investors representing Escrow Interests aggregating not less than a majority in interest in the Account Amounts (an “Action of Investors”).  Upon any such resignation or removal, the Investors, by an Action of Investors, shall have the right to appoint a successor Escrow Agent.  If no successor Escrow Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Escrow Agent’s giving of notice of resignation or the removal of the retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor Escrow Agent.  Any successor Escrow Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall enter into such documents as the Pass Through Trustee shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations hereunder.  No resignation or removal of the Escrow Agent shall be effective unless a written confirmation shall have been obtained from each of Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow Agent with the successor Escrow Agent will not result in (a) a reduction of the rating for the Certificates below the then current rating for the Certificates (without regard to the Policy) or (b) a withdrawal or suspension of the rating of the Certificates.

 

1.08.                        Persons Deemed Owners.  Prior to due presentment of a Certificate for registration of transfer, the Escrow Agent and the Paying Agent may treat the Person in whose name any Escrow Receipt is registered (as of the day of determination) as the owner of such Escrow Receipt for the purpose of receiving distributions pursuant to this Agreement and for all other purposes whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected by any notice to the contrary.

 

5



 

1.09.                        Further Assurances.  The Escrow Agent agrees to take such actions, and execute such other documents, as may be reasonably requested by the Pass Through Trustee in order to effectuate the purposes of this Agreement and the performance by the Escrow Agent of its obligations hereunder.

 

Section 2.                                          Paying Agent.

 

2.01.                        Appointment of Paying Agent.  The Escrow Agent hereby irrevocably appoints and authorizes the Paying Agent to act as its paying agent hereunder, for the benefit of the Investors, for such specific purposes and with such powers as are specifically delegated to the Paying Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto.  Any and all money received and held by the Paying Agent under this Agreement or the Deposit Agreement shall be held in the Paying Agent Account for the benefit of the Investors.  The Paying Agent (which term as used in this sentence shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents):  (a) shall have no duties or responsibilities except those expressly set forth in this Agreement, and shall not by reason of this Agreement be a trustee for the Escrow Agent; (b) shall not be responsible to the Escrow Agent for any recitals, statements, representations or warranties of any person other than itself contained in this Agreement or for the failure by the Escrow Agent or any other person or entity (other than the Paying Agent) to perform any of its obligations hereunder (whether or not the Paying Agent shall have any knowledge thereof); and (c) except in respect of its express obligations hereunder, shall not be responsible for any action taken or omitted to be taken by it hereunder or provided for herein or in connection herewith, except for its own willful misconduct or gross negligence (or simple negligence in connection with the handling of funds actually received by it in accordance with the terms of this Agreement).

 

2.02.                        Establishment of Paying Agent Account.  The Paying Agent shall establish a deposit account (the “Paying Agent Account”) at Wilmington Trust Company in the name of the Escrow Agent.  It is expressly understood by the parties hereto that the Paying Agent is acting as the paying agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying Agent Account constitute part of the Trust Property.

 

2.03.                        Payments from Paying Agent Account.  The Escrow Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees to act, as follows:

 

(a)                                  On each Interest Payment Date (as defined in the Deposit Agreement) or as soon thereafter as the Paying Agent has confirmed receipt in the Paying Agent Account from the Depositary of any amount in respect of accrued interest on the Deposits, the Paying Agent shall distribute out of the Paying Agent Account the entire amount deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding such Interest Payment Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount of interest deposited by the Depositary in the Paying Agent Account on such date, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

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(b)                                 Upon the confirmation by the Paying Agent of receipt in the Paying Agent Account from the Depositary of any amount in respect of the Final Withdrawal, the Paying Agent shall forthwith distribute the entire amount of the Final Withdrawal deposited therein by the Depositary.  There shall be so distributed to each Receiptholder of record on the 15th day (whether or not a Business Day) preceding the Final Withdrawal Date by check mailed to such Receiptholder, at the address appearing in the Register, such Receiptholder’s pro rata share (based on the Escrow Interest in the Account Amounts held by such Receiptholder) of the total amount in the Paying Agent Account on account of such Final Withdrawal, except that, with respect to Escrow Receipts registered on the Record Date in the name of DTC, such distribution shall be made by wire transfer in immediately available funds to the account designated by DTC.

 

(c)                                  If any payment of interest or principal in respect of the Final Withdrawal is not received by the Paying Agent within five days of the applicable date when due, then it shall be distributed to Receiptholders after actual receipt by the Paying Agent on the same basis as a Special Payment is distributed under the Pass Through Trust Agreement.

 

(d)                                 The Paying Agent shall include with any check mailed pursuant to this Section any notice required to be distributed under the Pass Through Trust Agreement that is furnished to the Paying Agent by the Pass Through Trustee.

 

(e)                                  In connection with any distribution made by the Paying Agent pursuant to this Section 2.03, if at the time of such distribution the Paying Agent and the Pass Through Trustee are not the same Person, the Paying Agent shall send to the Pass Through Trustee a report stating the aggregate amount of funds distributed by the Paying Agent hereunder and the amount allocable to principal, interest and any unused Deposits.

 

2.04.                        Withholding Taxes.  The Paying Agent shall exclude and withhold from each distribution of accrued interest on the Deposits (as defined in the Deposit Agreement) and any amount in respect of the Final Withdrawal any and all withholding taxes applicable thereto as required by law.  The Paying Agent agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Deposits (as defined in the Deposit Agreement) or the escrow amounts, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Receiptholders, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each such Receiptholder appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Receiptholder may reasonably request from time to time.  The Paying Agent agrees to file any other information reports as it may be required to file under United States law.

 

2.05.                        Resignation or Removal of Paying Agent.  Subject to the appointment and acceptance of a successor Paying Agent as provided below, the Paying Agent may resign at anytime by giving 30 days’ prior written notice thereof to the Escrow Agent, but may not otherwise be removed except for cause by the Escrow Agent.  Upon any such resignation or removal, the Escrow Agent shall have the right to appoint a successor Paying Agent.  If no successor Paying Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Paying Agent’s giving of notice of resignation or the removal of

 

7



 

the retiring Paying Agent, then the retiring Paying Agent may appoint a successor Paying Agent.  Any Successor Paying Agent shall be a bank which has an office in the United States with a combined capital and surplus of at least $100,000,000.  Upon the acceptance of any appointment as Paying Agent hereunder by a successor Paying Agent, such successor Paying Agent shall enter into such documents as the Escrow Agent shall require and shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent, and the retiring Paying Agent shall be discharged from its duties and obligations hereunder.

 

2.06.                        Notice of Final Withdrawal.  Promptly after receipt by the Paying Agent of notice that the Escrow Agent has requested a Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall cause notice of the distribution of such Final Withdrawal to be mailed to each of the Receiptholders at its address as it appears in the Register.  Such notice shall be mailed not less than 20 days prior to the Final Withdrawal Date.  Such notice shall set forth:

 

(i)                                     the Final Withdrawal Date and the date for determining Receiptholders of record who shall be entitled to receive distributions in respect of such Final Withdrawal,

 

(ii)                                  the amount of the payment in respect of such Final Withdrawal for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee) and the amount thereof constituting unused Deposits (as defined in the Deposit Agreement) and interest thereon, and

 

(iii)                               if the Final Withdrawal Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Certificate (based on information provided by the Pass Through Trustee).

 

Such mailing may include any notice required to be given to Certificateholders in connection with such distribution pursuant to the Pass Through Trust Agreement.

 

Section 3.                                          Payments.  If, notwithstanding the instructions in Section 4 of the Deposit Agreement that all amounts payable to the Escrow Agent under the Deposit Agreement be paid by the Depositary directly to the Paying Agent or the Pass Through Trustee or a Replacement Depositary (depending on the circumstances), the Escrow Agent receives any payment thereunder, then the Escrow Agent shall forthwith pay such amount in Dollars and in immediately available funds by wire transfer to (a) in the case of a payment of accrued interest on the Deposits (as defined in the Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent Account and (b) in the case of any Purchase Withdrawal, directly to the Pass Through Trustee or its designee as specified and in the manner provided in the Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement Withdrawal (other than accrued interest), to the Replacement Depositary as provided in the Replacement Depositary Agreement.  The Escrow Agent hereby waives any and all rights of set-off, combination of accounts, right of retention or similar right (whether arising under applicable law, contract or otherwise) it may have against amounts payable to the Paying Agent howsoever arising.

 

Section 4.                                          Other Actions.  The Escrow Agent shall take such other actions under or in respect of the Deposit Agreement (including, without limitation, the enforcement of the

 

8



 

obligations of the Depositary thereunder) as the Investors, by an Action of Investors, may from time to time request.

 

Section 5.                                          Representations and Warranties of the Escrow Agent.  The Escrow Agent represents and warrants to JetBlue, the Investors, the Paying Agent and the Pass Through Trustee as follows:

 

(i)                                     it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement, the Deposit Agreement and any Replacement Deposit Agreement;

 

(iii)                               the execution, delivery and performance of each of this Agreement, the Deposit Agreement and any Replacement Deposit Agreement have been duly authorized by all necessary corporate action on the part of it and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and each such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof or thereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)                              no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement;

 

(v)                                 neither the execution, delivery or performance by it of this Agreement or the Deposit Agreement or any Replacement Deposit Agreement, nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

(vi)                              there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which,

 

9



 

if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or the Deposit Agreement or any Replacement Deposit Agreement or (B) would call into question or challenge the validity of this Agreement or the Deposit Agreement or the enforceability hereof or thereof in accordance with the terms hereof or thereof, nor is the Escrow Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement or the Deposit Agreement.

 

Section 6.                                          Representations and Warranties of the Paying Agent.  The Paying Agent represents and warrants to JetBlue, the Investors, the Escrow Agent and the Pass Through Trustee as follows:

 

(i)                                     it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware;

 

(ii)                                  it has full power, authority and legal right to conduct its business and operations as currently conducted and to enter into and perform its obligations under this Agreement;

 

(iii)                               the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of it and does not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of it, and such document has been duly executed and delivered by it and constitutes its legal, valid and binding obligations enforceable against it in accordance with the terms hereof except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors’ rights generally (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)                              no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state of Delaware governmental authority or regulatory body is required for the execution, delivery or performance by it of this Agreement;

 

(v)                                 neither the execution, delivery or performance by it of this Agreement, nor compliance with the terms and provisions hereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of it or any similar instrument binding on it or any order, writ, injunction or decree of any court or governmental authority against it or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which it is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any lien upon any of its properties; and

 

10



 

(vi)                              there are no pending or, to its knowledge, threatened actions, suits, investigations or proceedings (whether or not purportedly on behalf of it) against or affecting it or any of its property before or by any court or administrative agency which, if adversely determined, (A) would adversely affect the ability of it to perform its obligations under this Agreement or (B) would call into question or challenge the validity of this Agreement or the enforceability hereof in accordance with the terms hereof, nor is the Paying Agent in default with respect to any order of any court, governmental authority, arbitration board or administrative agency so as to adversely affect its ability to perform its obligations under this Agreement.

 

Section 7.                                          Indemnification.  Except for actions expressly required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow Agent and the Paying Agent shall in all cases be fully justified in failing or refusing to act hereunder unless it shall have been indemnified (both in such capacities and individually) by the party requesting such action in a manner reasonably satisfactory to it against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  In the event JetBlue requests any amendment to any Operative Agreement (as defined in the Note Purchase Agreement), the Pass Through Trustee agrees to pay all reasonable fees and expenses (including, without limitation, fees and disbursements of counsel) of the Escrow Agent and the Paying Agent in connection therewith.

 

Section 8.                                          Amendment, Etc.  Upon request of the Pass Through Trustee and approval by an Action of Investors, the Escrow Agent shall enter into an amendment to this Agreement, so long as such amendment does not adversely affect the rights or obligations of the Escrow Agent or the Paying Agent, provided that upon request of the Pass Through Trustee and without any consent of the Investors, the Escrow Agent shall enter into an amendment to this Agreement for any of the following purposes:

 

(1)                                  to correct or supplement any provision in this Agreement which may be defective or inconsistent with any other provision herein or to cure any ambiguity or correct any mistake or to modify any other provision with respect to matters or questions arising under this Agreement, provided that any such action shall not materially adversely affect the interests of the Investors; or

 

(2)                                  to comply with any requirement of the SEC, applicable law, rules or regulations of any exchange or quotation system on which the Certificates are listed or any regulatory body; or

 

(3)                                  to evidence and provide for the acceptance of appointment under this Agreement of a successor Escrow Agent, successor Paying Agent or successor Pass Through Trustee.

 

Section 9.                                          Notices.  Unless otherwise expressly provided herein, any notice or other communication under this Agreement shall be in writing (including by facsimile) and shall be deemed to be given and effective upon receipt thereof (or, if received outside of business hours, at the opening of business on the next Business Day).  All notices shall be sent to (a) in the case of the Investors, as their respective addresses shall appear in the Register, (b) in the case of the

 

11



 

Escrow Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), (c) in the case of the Pass Through Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), or (d) in the case of the Paying Agent, Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration (Telecopier:  302-636-4140), in each case with a copy to JetBlue, JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  Vice President – Corporate Finance (Telecopier:  718-709-3639) with a copy to:  JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  General Counsel (Telecopier:  718-709-3631) (or at such other address as any such party may specify from time to time in a written notice to the other parties).  On or prior to the execution of this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a certificate containing specimen signatures of the representatives of the Pass Through Trustee who are authorized to give notices and instructions with respect to this Agreement.  The Escrow Agent may conclusively rely on such certificate until the Escrow Agent receives written notice from the Pass Through Trustee to the contrary.

 

Section 10.                                   Transfer.  No party hereto shall be entitled to assign or otherwise transfer this Agreement (or any interest herein) other than (in the case of the Escrow Agent) to a successor escrow agent under Section 1.07 hereof or (in the case of the Paying Agent) to a successor paying agent under Section 2.05 hereof, and any purported assignment in violation thereof shall be void.  This Agreement shall be binding upon the parties hereto and their respective successors and (in the case of the Escrow Agent and the Paying Agent) their respective permitted assigns.  Upon the occurrence of the Transfer (as defined below) contemplated by the Assignment and Assumption Agreement (as defined below), the Pass Through Trustee shall (without further act) be deemed to have transferred all of its right, title and interest in and to this Agreement to the trustee of the Successor Trust (as defined below) and, thereafter, the trustee of the Successor Trust shall be deemed to be the “Pass Through Trustee” hereunder with the rights and obligations of the “Pass Through Trustee” hereunder and each reference herein to “JetBlue Airways Pass Through Trust “2004-2C-O” shall be deemed to be a reference to “JetBlue Airways Pass Through Trust 2004-2C-S”.  The parties hereto hereby acknowledge and consent to the Transfer contemplated by the Assignment and Assumption Agreement.  As used herein, “Transfer” means the transfers of the assets to the Successor Trust contemplated by the Assignment and Assumption Agreement; “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into between the Pass Through Trustee and the trustee of the Successor Trust; “Successor Trust” means the JetBlue Airways Pass Through Trust 2004-2C-S.

 

Section 11.                                   Entire Agreement.  This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings among the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.

 

Section 12.                                   Governing Law.  This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.

 

12



 

Section 13.                                   Waiver of Jury Trial RightEACH OF THE ESCROW AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.

 

Section 14.                                   Counterparts.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.

 

*   *   *

 

13



 

IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the Underwriters and the Pass Through Trustee have caused this Escrow and Paying Agent Agreement (Class C) to be duly executed as of the day and year first above written.

 

 

 

WILMINGTON TRUST COMPANY,
as Escrow Agent

 

 

 

 

 

By.

/s/ W. Chris Sponenberg

 

 

Name:  W. Chris Sponenberg

 

 

Title:     Vice President

 

 

 

 

 

MORGAN STANLEY & CO.
INCORPORATED
, CITIGROUP
GLOBAL MARKETS INC., J.P.
MORGAN SECURITIES INC.
and HSBC
SECURITIES (USA) INC.,
as Underwriters

 

 

 

 

 

By: MORGAN STANLEY & CO.
INCORPORATED

 

 

 

 

 

By:

/s/ Michael Evans

 

 

Name:  Michael Evans

 

 

Title:    Executive Director

 

 

 

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity, but solely as Pass
Through Trustee for and on behalf of JetBlue
Airways Pass Through Trust 2004-2C-O

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

Name:  W. Chris Sponenberg

 

 

Title:     Vice President

 

 

 

 

 

WILMINGTON TRUST COMPANY, as
Paying Agent 

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

Name:  W. Chris Sponenberg

 

 

Title:     Vice President

 

14



 

EXHIBIT A

 

JETBLUE AIRWAYS 2004-2C ESCROW RECEIPT

 

No.      

 

This Escrow Receipt evidences a fractional undivided interest in amounts (“Account Amounts”) from time to time deposited into a certain paying agent account (the “Paying Agent Account”) described in the Escrow and Paying Agent Agreement (Class C) dated as of November 15, 2004 (as amended, modified or supplemented from time to time, the “Escrow and Paying Agent Agreement”) among Wilmington Trust Company, as Escrow Agent (in such capacity, together with its successors in such capacity, the “Escrow Agent”), Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee (in such capacity, together with its successors in such capacity, the “Pass Through Trustee”) and Wilmington Trust Company, as paying agent (in such capacity, together with its successors in such capacity, the “Paying Agent”).  Capitalized terms not defined herein shall have the meanings assigned to them in the Escrow and Paying Agent Agreement.

 

This Escrow Receipt is issued under and is subject to the terms, provisions and conditions of the Escrow and Paying Agent Agreement.  By virtue of its acceptance hereof the holder of this Escrow Receipt assents and agrees to be bound by the provisions of the Escrow and Paying Agent Agreement and this Escrow Receipt.

 

This Escrow Receipt represents a fractional undivided interest in amounts deposited from time to time in the Paying Agent Account, and grants or represents no rights, benefits or interests of any kind in respect of any assets or property other than such amounts.  This Escrow Receipt evidences the same percentage interest in the Account Amounts as the Fractional Undivided Interest in the Pass Through Trust evidenced by the Certificate to which this Escrow Receipt is affixed.

 

All payments and distributions made to Receiptholders in respect of the Escrow Receipt shall be made only from Account Amounts deposited in the Paying Agent Account.  The holder of this Escrow Receipt, by its acceptance of this Escrow Receipt, agrees that it will look solely to the Account Amounts for any payment or distribution due to it pursuant to this Escrow Receipt and that it will not have any recourse to JetBlue, the Pass Through Trustee, the Paying Agent or the Escrow Agent, except as expressly provided herein or in the Pass Through Trust Agreement.  No Receiptholder of this Escrow Receipt shall have any right to vote or in any manner otherwise control the operation and management of the Paying Agent Account, nor shall anything set forth herein, or contained in the terms of this Escrow Receipt, be construed so as to constitute the Receiptholders from time to time as partners or members of an association.

 

This Escrow Receipt may not be assigned or transferred except in connection with the assignment or transfer of the Certificate to which this Escrow Receipt is affixed.  After payment to the holder hereof of its Escrow Interest in the Final Distribution, upon the request of the Pass Through Trustee, the holder hereof will return this Escrow Receipt to the Pass Through Trustee.

 

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The Paying Agent may treat the person in whose name the Certificate to which this Escrow Receipt is attached as the owner hereof for all purposes, and the Paying Agent shall not be affected by any notice to the contrary.

 

THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*   *   *

 

2



 

IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow Receipt to be duly executed.

 

Dated:                   , 2004

 

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

3



 

EXHIBIT B

 

WITHDRAWAL CERTIFICATE

(Class C)

 

WILMINGTON TRUST COMPANY,

as Escrow Agent

Dear Sirs:

 

Reference is made to the Escrow and Paying Agent Agreement, dated as of November 15, 2004 (the “Agreement”).  [We hereby certify to you that the conditions to the obligations of the undersigned to execute a Participation Agreement pursuant to the Note Purchase Agreement have been satisfied] [We hereby notify you that the Depositary is being replaced in accordance with Section 4(a)(v) of the Note Purchase Agreement].  Pursuant to Section 1.02(c) of the Agreement, please execute the attached Notice of Purchase Withdrawal and immediately transmit by facsimile to the Depositary, at (212) 407-6033, Attention:  Transportation – Americas.

 

 

 

Very truly yours,

 

 

 

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as Pass
Through Trustee

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

Dated:                   , 200  

 

1


 

EX-4.14 16 a04-11378_4ex4d14.htm EX-4.14

Exhibit 4.14

 

(Multicurrency—Cross Border)

 

ISDA®

International Swap Dealers Association, Inc.

 

MASTER AGREEMENT

 

dated as of March 24, 2004

 

between

 

CITIBANK, N.A.

 

and

 

WILMINGTON TRUST

 

 

 

 

COMPANY

 

have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will be governed by this Master Agreement, which includes the schedule (the “Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties confirming those Transactions.

 

Accordingly, the parties agree as follows:—

 

1.                                      Interpretation.

 

(a)                                  Definitions.  The terms defined in Section 14 and in the Schedule will have the meanings therein specified for the purpose of this Master Agreement.

 

(b)                                 Inconsistency.  In the event of any inconsistency between the provisions of the Schedule and the other provisions of this Master Agreement, the Schedule will prevail.  In the event of any inconsistency between the provisions of any Confirmation and this Master Agreement (including the Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.

 

(c)                                  Single Agreement.  All Transactions are entered into in reliance on the fact that this Master Agreement and all Confirmations form a single agreement between the parties (collectively referred to as this “Agreement”), and the parties would not otherwise enter into any Transactions.

 

2.                                      Obligations.

 

(a)                                  General Conditions.

 

(i) Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other provisions of this Agreement.

 

(ii) Payments under this Agreement will be made on the due date for value on that date in the place of the account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely transferable funds and in the manner customary for payments in the required currency.  Where settlement is by delivery (that is, other than by payment), such delivery will be made for receipt on the due date in the manner customary for the relevant obligation unless otherwise specified in the relevant Confirmation or elsewhere in this Agreement.

 

(iii)                               Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing, (2) the condition precedent that no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated and (3) each other applicable condition precedent specified in this Agreement.

 

Copyright © 1992 by International Swaps and Derivatives Association, Inc.

 



 

(b)                                 Change of Account. Either party may change its account for receiving a payment or delivery by giving notice to the other party at least five Local Business Days prior to the scheduled date for the payment or delivery to which such change applies unless such other party gives timely notice of a reasonable objection to such change.

 

(c)                                  Netting. If on any date amounts would otherwise be payable:—

 

(i)                                     in the same currency; and

 

(ii)                                  in respect of the same Transaction,

 

by each party to the other, then, on such date, each party’s obligation to make payment of any such amount will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an obligation upon the party by whom the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

 

The parties may elect in respect of two or more Transactions that a net amount will be determined in respect of all amounts payable on the same date in the same currency in respect of such Transactions, regardless of whether such amounts are payable in respect of the same Transaction. The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii) above will not apply to the Transactions identified as being subject to the election, together with the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to such Transactions from such date). This election may be made separately for different groups of Transactions and will apply separately to each pairing of Offices through which the parties make and receive payments or deliveries.

 

(d)                                 Deduction or Withholding for Tax.

 

(i)                  Gross-Up. All payments under this Agreement will be made without any deduction or withholding for or on account of any Tax unless such deduction or withholding is required by any applicable law, as modified by the practice of any relevant governmental revenue authority, then in effect. If a party is so required to deduct or withhold, then that party (“X”) will:—

 

(1)     promptly notify the other party (“Y”) of such requirement;

 

(2)     pay to the relevant authorities the full amount required to be deducted or withheld (including the full amount required to be deducted or withheld from any additional amount paid by X to Y under this Section 2(d)) promptly upon the earlier of determining that such deduction or withholding is required or receiving notice that such amount has been assessed against Y;

 

(3)     promptly forward to Y an official receipt (or a certified copy), or other documentation reasonably acceptable to Y, evidencing such payment to such authorities; and

 

(4)     if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Y (free and clear of Indemnifiable Taxes, whether assessed against X or Y) will equal the full amount Y would have received had no such deduction or withholding been required. However, X will not be required to pay any additional amount to Y to the extent that it would not be required to be paid but for:—

 

(A) the failure by Y to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d); or

 

(B) the failure of a representation made by Y pursuant to Section 3(f) to be accurate and true unless such failure would not have occurred but for (I) any action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (II) a Change in Tax Law.

 

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(ii)               Liability. If: —

 

(1)          X is required by any applicable law, as modified by the practice of any relevant governmental revenue authority, to make any deduction or withholding in respect of which X would not be required to pay an additional amount to Y under Section 2(d)(i)(4);

 

(2)          X does not so deduct or withhold; and

 

(3)          a liability resulting from such Tax is assessed directly against X,

 

then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y will promptly pay to X the amount of such liability (including any related liability for interest, but including any related liability for penalties only if Y has failed to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).

 

(e)                                  Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early Termination Date in respect of the relevant Transaction, a party that defaults in the performance of any payment obligation will, to the extent permitted by law and subject to Section 6(c), be required to pay interest (before as well as after judgment) on the overdue amount to the other party on demand in the same currency as such overdue amount, for the period from (and including) the original due date for payment to (but excluding) the date of actual payment, at the Default Rate. Such interest will be calculated on the basis of daily compounding and the actual number of days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in respect of the relevant Transaction, a party defaults in the performance of any obligation required to be settled by delivery, it will compensate the other party on demand if and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement.

 

3.                                      Representations

 

Each party represents to the other party (which representations will be deemed to be repeated by each party on each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all times until the termination of this Agreement) that:—

 

(a)                                  Basic Representations.

 

(i)                  Status. It is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation and, if relevant under such laws, in good standing;

 

(ii)               Powers.  It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver and to perform its obligations under this Agreement and any obligations it has under any Credit Support Document to which it is a party and has taken all necessary action to authorise such execution, delivery and performance;

 

(iii)            No Violation or Conflict. Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;

 

(iv)           Consents. All governmental and other consents that are required to have been obtained by it with respect to this Agreement or any Credit Support Document to which it is a party have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and

 

(v)              Obligations Binding. Its obligations under this Agreement and any Credit Support Document to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).

 

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(b)                                 Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any Credit Support Document to which it is a party.

 

(c)                                  Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations under this Agreement or such Credit Support Document.

 

(d)                                 Accuracy of Specified Information. All applicable information that is furnished in writing by or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of the date of the information, true, accurate and complete in every material respect.

 

(e)                                  Payer Tax Representation. Each representation specified in the Schedule as being made by it for the purpose of this Section 3(e) is accurate and true.

 

(f)                                    Payee Tax Representations. Each representation specified in the Schedule as being made by it for the purpose of this Section 3(f) is accurate and true.

 

4.                                      Agreements

 

Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement or under any Credit Support Document to which it is a party:—

 

(a)                                  Furnish Specified Information. It will deliver to the other party or, in certain cases under subparagraph (iii) below, to such government or taxing authority as the other party reasonably directs:—

 

(i)                                     any forms, documents or certificates relating to taxation specified in the Schedule or any Confirmation;

 

(ii)                                  any other documents specified in the Schedule or any Confirmation; and

 

(iii)                               upon reasonable demand by such other party, any form or document that may be required or reasonably requested in writing in order to allow such other party or its Credit Support Provider to make a payment under this Agreement or any applicable Credit Support Document without any deduction or withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (so long as the completion, execution or submission of such form or document would not materially prejudice the legal or commercial position of the party in receipt of such demand), with any such form or document to be accurate and completed in a manner reasonably satisfactory to such other party and to be executed and to be delivered with any reasonably required certification,

 

in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably practicable.

 

(b)                                 Maintain Authorisations. It will use all reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become necessary in the future.

 

(c)                                  Comply with Laws. It will comply in all material respects with all applicable laws and orders to which it may be subject if failure so to comply would materially impair its ability to perform its obligations under this Agreement or any Credit Support Document to which it is a party.

 

(d)                                 Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f) to be accurate and true promptly upon learning of such failure.

 

(e)                                  Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated,

 

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organised, managed and controlled, or considered to have its seat, or in which a branch or office through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”) and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.

 

5.                                      Events of Default and Termination Events

 

(a)                                  Events of Default. The occurrence at any time with respect to a party or, if applicable, any Credit Support Provider of such party or any Specified Entity of such party of any of the following events constitutes an event of default (an “Event of Default”) with respect to such party:—

 

(i)                  Failure to Pay or Deliver. Failure by the party to make, when due, any payment under this Agreement or delivery under Section 2(a)(i) or 2(e) required to be made by it if such failure is not remedied on or before the third Local Business Day after notice of such failure is given to the party;

 

(ii)               Breach of Agreement. Failure by the party to comply with or perform any agreement or obligation (other than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance with this Agreement if such failure is not remedied on or before the thirtieth day after notice of such failure is given to the party;

 

(iii)            Credit Support Default.

 

(1)  Failure by the party or any Credit Support Provider of such party to comply with or perform any agreement or obligation to be complied with or performed by it in accordance with any Credit Support Document if such failure is continuing after any applicable grace period has elapsed;

 

(2)  the expiration or termination of such Credit Support Document or the failing or ceasing of such Credit Support Document to be in full force and effect for the purpose of this Agreement (in either case other than in accordance with its terms) prior to the satisfaction of all obligations of such party under each Transaction to which such Credit Support Document relates without the written consent of the other party; or

 

(3)  the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, such Credit Support Document;

 

(iv)           Misrepresentation. A representation (other than a representation under Section 3(e) or (f)) made or repeated or deemed to have been made or repeated by the party or any Credit Support Provider of such party in this Agreement or any Credit Support Document proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated;

 

(v)              Default under Specified Transaction. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party (1) defaults under a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of obligations under, or an early termination of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default continues for at least three Local Business Days if there is no applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or in part, a Specified Transaction (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf);

 

(vi)           Cross Default. If “Cross Default” is specified in the Schedule as applying to the party, the occurrence or existence of (1) a default, event of default or other similar condition or event (however

 

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described) in respect of such party, any Credit Support Provider of such party or any applicable Specified Entity of such party under one or more agreements or instruments relating to Specified Indebtedness of any of them (individually or collectively) in an aggregate amount of not less than the applicable Threshold Amount (as specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or becoming capable at such time of being declared, due and payable under such agreements or instruments, before it would otherwise have been due and payable or (2) a default by such party, such Credit Support Provider or such Specified Entity (individually or collectively) in making one or more payments on the due date thereof in an aggregate amount of not less than the applicable Threshold Amount under such agreements or instruments (after giving effect to any applicable notice requirement or grace period);

 

(vii)        Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party: —

 

(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (3) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (4) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition (A) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; (5) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (7) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (8) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (7) (inclusive); or (9) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or

 

(viii)     Merger Without Assumption. The party or any Credit Support Provider of such party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer: —

 

(1)  the resulting, surviving or transferee entity fails to assume all the obligations of such party or such Credit Support Provider under this Agreement or any Credit Support Document to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to the other party to this Agreement; or

 

(2)  the benefits of any Credit Support Document fail to extend (without the consent of the other party) to the performance by such resulting, surviving or transferee entity of its obligations under this Agreement.

 

(b)                                 Termination Events. The occurrence at any time with respect to a party or, if applicable, any Credit Support Provider of such party or any Specified Entity of such party of any event specified below constitutes an Illegality if the event is specified in (i) below, a Tax Event if the event is specified in (ii) below or a Tax Event Upon Merger if the event is specified in (iii)  below, and, if specified to be applicable, a Credit Event

 

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Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination Event if the event is specified pursuant to (v) below:—

 

(i)                  Illegality. Due to the adoption of, or any change in, any applicable law after the date on which a Transaction is entered into, or due to the promulgation of, or any change in, the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law after such date, it becomes unlawful (other than as a result of a breach by the party of Section 4(b)) for such party (which will be the Affected Party): —

 

(1)  to perform any absolute or contingent obligation to make a payment or delivery or to receive a payment or delivery in respect of such Transaction or to comply with any other material provision of this Agreement relating to such Transaction; or

 

(2)  to perform, or for any Credit Support Provider of such party to perform, any contingent or other obligation which the party (or such Credit Support Provider) has under any Credit Support Document relating to such Transaction;

 

(ii)               Tax Event. Due to (x) any action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (y) a Change in Tax Law, the party (which will be the Affected Party) will, or there is a substantial likelihood that it will, on the next succeeding Scheduled Payment Date (1) be required to pay to the other party an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));

 

(iii)            Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding Scheduled Payment Date will either (1) be required to pay an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been deducted or withheld for or on account of any Indemnifiable Tax in respect of which the other party is not required to pay an additional amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party consolidating or amalgamating with, or merging with or into, or transferring all or substantially all its assets to, another entity (which will be the Affected Party) where such action does not constitute an event described in Section 5(a)(viii);

 

(iv)           Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule as applying to the party, such party (“X”), any Credit Support Provider of X or any applicable Specified Entity of X consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and such action does not constitute an event described in Section 5(a)(viii) but the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of X, such Credit Support Provider or such Specified Entity, as the case may be, immediately prior to such action (and, in such event, X or its successor or transferee, as appropriate, will be the Affected Party);  or

 

(v)              Additional Termination Event. If any “Additional Termination Event” is specified in the Schedule or any Confirmation as applying, the occurrence of such event (and, in such event, the Affected Party or Affected Parties shall be as specified for such Additional Termination Event in the Schedule or such Confirmation).

 

(c)                                 Event of Default and Illegality. If an event or circumstance which would otherwise constitute or give rise to an Event of Default also constitutes an Illegality, it will be treated as an Illegality and will not constitute an Event of Default.

 

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6.                                      Early Termination

 

(a)                                  Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions. If, however, “Automatic Early Termination” is specified in the Schedule as applying to a party, then an Early Termination Date in respect of all outstanding Transactions will occur immediately upon the occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as of the time immediately preceding the institution of the relevant proceeding or the presentation of the relevant petition upon the occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).

 

(b)                                 Right to Terminate Following Termination Event.

 

(i)                  Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of it, notify the other party, specifying the nature of that Termination Event and each Affected Transaction and will also give such other information about that Termination Event as the other party may reasonably require.

 

(ii)               Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected Party, the Affected Party will, as a condition to its right to designate an Early Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require such party to incur a loss, excluding immaterial, incidental expenses) to transfer within 20 days after it gives notice under Section 6(b)(i) all its rights and obligations under this Agreement in respect of the Affected Transactions to another of its Offices or Affiliates so that such Termination Event ceases to exist.

 

If the Affected Party is not able to make such a transfer it will give notice to the other party to that effect within such 20 day period, whereupon the other party may effect such a transfer within 30 days after the notice is given under Section 6(b)(i).

 

Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the prior written consent of the other party, which consent will not be withheld if such other party’s policies in effect at such time would permit it to enter into transactions with the transferee on the terms proposed.

 

(iii)            Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are two Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days after notice thereof is given under Section 6(b)(i) on action to avoid that Termination Event.

 

(iv)           Right to Terminate. If: —

 

(1)  a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be, has not been effected with respect to all Affected Transactions within 30 days after an Affected Party gives notice under Section 6(b)(i); or

 

(2)  an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not the Affected Party,

 

either party in the case of an Illegality, the Burdened Party in the case of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event or an Additional Termination Event if there is more than one Affected Party, or the party which is not the Affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event if there is only one Affected Party may, by not more than 20 days notice to the other party and provided that the relevant Termination Event is then

 

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continuing, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all Affected Transactions.

 

(c)                                  Effect of Designation.

 

(i)                  If notice designating an Early Termination Date is given under Section 6(a) or (b), the Early Termination Date will occur on the date so designated, whether or not the relevant Event of Default or Termination Event is then continuing.

 

(ii)               Upon the occurrence or effective designation of an Early Termination Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated Transactions will be required to be made, but without prejudice to the other provisions of this Agreement. The amount, if any, payable in respect of an Early Termination Date shall be determined pursuant to Section 6(e).

 

(d)                                 Calculations.

 

(i)                  Statement. On or as soon as reasonably practicable following the occurrence of an Early Termination Date, each party will make the calculations on its part, if any, contemplated by Section 6(e) and will provide to the other party a statement (1) showing, in reasonable detail, such calculations (including all relevant quotations and specifying any amount payable under Section 6(e)) and (2) giving details of the relevant account to which any amount payable to it is to be paid. In the absence of written confirmation from the source of a quotation obtained in determining a Market Quotation, the records of the party obtaining such quotation will be conclusive evidence of the existence and accuracy of such quotation.

 

(ii)               Payment Date. An amount calculated as being due in respect of any Early Termination Date under Section 6(e) will be payable on the day that notice of the amount payable is effective (in the case of an Early Termination Date which is designated or occurs as a result of an Event of Default) and on the day which is two Local Business Days after the day on which notice of the amount payable is effective (in the case of an Early Termination Date which is designated as a result of a Termination Event). Such amount will be paid together with (to the extent permitted under applicable law) interest thereon (before as well as after judgment) in the Termination Currency, from (and including) the relevant Early Termination Date to (but excluding) the date such amount is paid, at the Applicable Rate. Such interest will be calculated on the basis of daily compounding and the actual number of days elapsed.

 

(e)                                  Payments on Early Termination. If an Early Termination Date occurs, the following provisions shall apply based on the parties’ election in the Schedule of a payment measure, either “Market Quotation” or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If the parties fail to designate a payment measure or payment method in the Schedule, it will be deemed that “Market Quotation” or the “Second Method”, as the case may be, shall apply. The amount, if any, payable in respect of an Early Termination Date and determined pursuant to this Section will be subject to any Set-off.

 

(i)                  Events of Default. If the Early Termination Date results from an Event of Default: —

 

(1)     First Method and Market Quotation. If the First Method and Market Quotation apply, the Defaulting Party will pay to the Non-defaulting Party the excess, if a positive number, of (A) the sum of the Settlement Amount (determined by the Non-defaulting Party) in respect of the Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party over (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party.

 

(2)     First Method and Loss. If the First Method and Loss apply, the Defaulting Party will pay to the Non-defaulting Party, if a positive number, the Non-defaulting Party’s Loss in respect of this Agreement.

 

(3)     Second Method and Market Quotation. If the Second Method and Market Quotation apply, an amount will be payable equal to (A) the sum of the Settlement Amount (determined by the

 

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Non-defaulting Party) in respect of the Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If that amount is a positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative number, the Non-defaulting Party will pay the absolute value of that amount to the Defaulting Party.

 

(4)     Second Method and Loss. If the Second Method and Loss apply, an amount will be payable equal to the Non-defaulting Party’s Loss in respect of this Agreement. If that amount is a positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative number, the Non-defaulting Party will pay the absolute value of that amount to the Defaulting Party.

 

(ii)               Termination Events.  If the Early Termination Date results from a Termination Event: —

 

(1)     One Affected Party. If there is one Affected Party, the amount payable will be determined in accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except that, in either case, references to the Defaulting Party and to the Non-defaulting Party will be deemed to be references to the Affected Party and the party which is not the Affected Party, respectively, and, if Loss applies and fewer than all the Transactions are being terminated, Loss shall be calculated in respect of all Terminated Transactions.

 

(2)     Two Affected Parties. If there are two Affected Parties: —

 

(A) if Market Quotation applies, each party will determine a Settlement Amount in respect of the Terminated Transactions, and an amount will be payable equal to (I) the sum of (a) one-half of the difference between the Settlement Amount of the party with the higher Settlement Amount (“X”) and the Settlement Amount of the party with the lower Settlement Amount (“Y”) and (b) the Termination Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency Equivalent of the Unpaid Amounts owing to Y; and

 

(B) if Loss applies, each party will determine its Loss in respect of this Agreement (or, if fewer than all the Transactions are being terminated, in respect of all Terminated Transactions) and an amount will be payable equal to one-half of the difference between the Loss of the party with the higher Loss (“X”) and the Loss of the party with the lower Loss (“Y”).

 

If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X will pay the absolute value of that amount to Y.

 

(iii)            Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because “Automatic Early Termination” applies in respect of a party, the amount determined under this Section 6(e) will be subject to such adjustments as are appropriate and permitted by law to reflect any payments or deliveries made by one party to the other under this Agreement (and retained by such other party) during the period from the relevant Early Termination Date to the date for payment determined under Section 6(d)(ii).

 

(iv)           Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss of bargain and the loss of protection against future risks and except as otherwise provided in this Agreement neither party will be entitled to recover any additional damages as a consequence of such losses.

 

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7.                                      Transfer

 

Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether by way of security or otherwise) by either party without the prior written consent of the other party, except that: —

 

(a)                                  a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without prejudice to any other right or remedy under this Agreement); and

 

(b)                                 a party may make such a transfer of all or any part of its interest in any amount payable to it from a Defaulting Party under Section 6(e).

 

Any purported transfer that is not in compliance with this Section will be void.

 

8.                                      Contractual Currency

 

(a)                                  Payment in the Contractual Currency. Each payment under this Agreement will be made in the relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the extent permitted by applicable law, any obligation to make payments under this Agreement in the Contractual Currency will not be discharged or satisfied by any tender in any currency other than the Contractual Currency, except to the extent such tender results in the actual receipt by the party to which payment is owed, acting in a reasonable manner and in good faith in converting the currency so tendered into the Contractual Currency, of the full amount in the Contractual Currency of all amounts payable in respect of this Agreement. If for any reason the amount in the Contractual Currency so received falls short of the amount in the Contractual Currency payable in respect of this Agreement, the party required to make the payment will, to the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency as may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency so received exceeds the amount in the Contractual Currency payable in respect of this Agreement, the party receiving the payment will refund promptly the amount of such excess.

 

(b)                                 Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect of this Agreement, (ii) for the payment of any amount relating to any early termination in respect of this Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described in (i) or (ii) above, the party seeking recovery, after recovery in full of the aggregate amount to which such party is entitled pursuant to the judgment or order, will be entitled to receive immediately from the other party the amount of any shortfall of the Contractual Currency received by such party as a consequence of sums paid in such other currency and will refund promptly to the other party any excess of the Contractual Currency received by such party as a consequence of sums paid in such other currency if such shortfall or such excess arises or results from any variation between the rate of exchange at which the Contractual Currency is converted into the currency of the judgment or order for the purposes of such judgment or order and the rate of exchange at which such party is able, acting in a reasonable manner and in good faith in converting the currency received into the Contractual Currency, to purchase the Contractual Currency with the amount of the currency of the judgment or order actually received by such party. The term “rate of exchange” includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the Contractual Currency.

 

(c)                                  Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute separate and independent obligations from the other obligations in this Agreement, will be enforceable as separate and independent causes of action, will apply notwithstanding any indulgence granted by the party to which any payment is owed and will not be affected by judgment being obtained or claim or proof being made for any other sums payable in respect of this Agreement.

 

(d)                                 Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate that it would have suffered a loss had an actual exchange or purchase been made.

 

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9.                                      Miscellaneous

 

(a)                                  Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.

 

(b)                                 Amendments. No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.

 

(c)                                  Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties under this Agreement will survive the termination of any transaction.

 

(d)                                 Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by law.

 

(e)                                  Counterparts and Confirmations.

 

(i)                  This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

(ii)               The parties intend that they are legally bound by the terms of each Transaction from the moment they agree to those terms (whether orally or otherwise). A Confirmation shall he entered into as soon as practicable and may he executed and delivered in counterparts (including by facsimile transmission) or be created by an exchange of telexes or by an exchange of electronic messages on an electronic messaging system, which in each case will be sufficient for all purposes to evidence a binding supplement to this Agreement. The parties will specify therein or through another effective means that any such counterpart, telex or electronic message constitutes a Confirmation.

 

(f)                                    No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.

 

(g)                                 Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.

 

10.                               Offices; Multibranch Parties

 

(a)                                  If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction through an Office other than its head or home office represents to the other party that, notwithstanding the place of booking office or jurisdiction of incorporation or organisation of such party, the obligations of such party are the same as if it had entered into the Transaction through its head or home office. This representation will be deemed to be repeated by such party on each date on which a Transaction is entered into.

 

(b)                                 Neither party may change the Office through which it makes and receives payments or deliveries for the purpose of a Transaction without the prior written consent of the other party.

 

(c)                                  If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make and receive payments or deliveries under any Transaction through any Office listed in the Schedule, and the Office through which it makes and receives payments or deliveries with respect to a Transaction will be specified in the relevant Confirmation.

 

11.                               Expenses

 

A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement or any Credit Support Document

 

12



 

to which the Defaulting Party is a party or by reason of the early termination of any Transaction, including, but not limited to, costs of collection.

 

12.                               Notices

 

(a)                                  Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given by facsimile transmission or electronic messaging system) to the address or number or in accordance with the electronic messaging system details provided (see the Schedule) and will be deemed effective as indicated:—

 

(i)                  if in writing and delivered in person or by courier, on the date it is delivered;

 

(ii)               if sent by telex, on the date the recipient’s answerback is received;

 

(iii)            if sent by facsimile transmission, on the date that transmission is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine);

 

(iv)           if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted; or

 

(v)              if sent by electronic messaging system, on the date that electronic message is received,

 

unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Local Business Day.

 

(b)                                 Change of Addresses. Either party may by notice to the other change the address, telex or facsimile number or electronic messaging system details at which notices or other communications are to be given to it.

 

13.                               Governing Law and Jurisdiction

 

(a)                                  Governing Law. This Agreement will be governed by and construed in accordance with the law specified in the Schedule.

 

(b)                                 Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement (“Proceedings”), each party irrevocably:—

 

(i)                  submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by English law, or to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, if this Agreement is expressed to be governed by the laws of the State of New York; and

 

(ii)               waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.

 

Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction (outside, if this Agreement is expressed to be governed by English law, the Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or any modification, extension or re-enactment thereof for the time being in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.

 

(c)                                  Service of Process. Each party irrevocably appoints the Process Agent (if any) specified opposite its name in the Schedule to receive, for it and on its behalf, service of process in any Proceedings.  If for any

 

13



 

reason any party’s Process Agent is unable to act as such, such party will promptly notify the other party and within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably consent to service of process given in the manner provided for notices in Section 12. Nothing in this Agreement will affect the right of either party to serve process in any other manner permitted by law.

 

(d)                                 Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.

 

14.                               Definitions

 

As used in this Agreement:—

 

“Additional Termination Event” has the meaning specified in Section 5(b).

 

“Affected Party” has the meaning specified in Section 5(b).

 

“Affected Transactions” means (a) with respect to any Termination Event consisting of an Illegality, Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event and (b) with respect to any other Termination Event, all Transactions.

 

“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person.

 

“Applicable Rate” means:—

 

(a)                                  in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;

 

(b)                                 in respect of an obligation to pay an amount under Section 6(e) of either party from and after the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;

 

(c)                                  in respect of all other obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and

 

(d)                                 in all other cases, the Termination Rate.

 

“Burdened Party” has the meaning specified in Section 5(b).

 

“Change in Tax Law” means the enactment, promulgation, execution or ratification of, or any change in or amendment to, any law (or in the application or official interpretation of any law) that occurs on or after the date on which the relevant Transaction is entered into.

 

“consent” includes a consent, approval, action, authorisation, exemption, notice, filing, registration or exchange control consent.

 

“Credit Event Upon Merger” has the meaning specified in Section 5(b).

 

“Credit Support Document” means any agreement or instrument that is specified as such in this Agreement.

 

“Credit Support Provider” has the meaning specified in the Schedule.

 

“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the relevant payee  (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum.

 

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“Defaulting Party” has the meaning specified in Section 6(a).

 

“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).

 

“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.

 

“Illegality” has the meaning specified in Section 5(b).

 

“Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a payment under this Agreement but for a present or former connection between the jurisdiction of the government or taxation authority imposing such Tax and the recipient of such payment or a person related to such recipient (including, without limitation, a connection arising from such recipient or related person being or having been a citizen or resident of such jurisdiction, or being or having been organised, present or engaged in a trade or business in such jurisdiction, or having or having had a permanent establishment or fixed place of business in such jurisdiction, but excluding a connection arising solely from such recipient or related person having executed, delivered, performed its obligations or received a payment under, or enforced, this Agreement or a Credit Support Document).

 

“law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of any relevant governmental revenue authority)  and “lawful” and “unlawful”  will be construed accordingly.

 

“Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to any obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so specified, as otherwise agreed by the parties in writing or determined pursuant to provisions contained, or incorporated by reference, in this Agreement, (b) in relation to any other payment, in the place where the relevant account is located and, if different, in the principal financial centre, if any, of the currency of such payment, (c) in relation to any notice or other communication, including notice contemplated under Section 5(a)(i), in the city specified in the address for notice provided by the recipient and, in the case of a notice contemplated by Section 2(b), in the place where the relevant new account is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant locations for performance with respect to such Specified Transaction.

 

“Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case may be, and a party, the Termination Currency Equivalent of an amount that party reasonably determines in good faith to be its total losses and costs (or gain, in which case expressed as a negative number) in connection with this Agreement or that Terminated Transaction or group of Terminated Transactions, as the case may be, including any loss of bargain, cost of funding or, at the election of such party but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of them). Loss includes losses and costs (or gains) in respect of any payment or delivery required to have been made (assuming satisfaction of each applicable condition precedent) on or before the relevant Early Termination Date and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a party’s legal fees and out-of-pocket expenses referred to under Section 11. A party will determine its Loss as of the relevant Early Termination Date, or, if that is not reasonably practicable, as of the earliest date thereafter as is reasonably practicable. A party may (but need not) determine its Loss by reference to quotations of relevant rates or prices from one or more leading dealers in the relevant markets.

 

“Market Quotation” means, with respect to one or more Terminated Transactions and a party making the determination, an amount determined on the basis of quotations from Reference Market-makers. Each quotation will be for an amount, if any, that would be paid to such party (expressed as a negative number) or by such party (expressed as a positive number) in consideration of an agreement between such party (taking into account any existing Credit Support Document with respect to the obligations of such party) and the quoting Reference Market-maker to enter into a transaction (the “Replacement Transaction”) that would have the effect of preserving for such party the economic equivalent of any payment or delivery (whether the underlying obligation was absolute or contingent and assuming the satisfaction of each applicable condition precedent) by the parties under Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions that would, but for the occurrence of the relevant Early Termination Date, have

 

15



 

been required after that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or group of Terminated Transactions are to be excluded but, without limitation, any payment or delivery that would, but for the relevant Early Termination Date, have been required (assuming satisfaction of each applicable condition precedent) after that Early Termination Date is to be included. The Replacement Transaction would be subject to such documentation as such party and the Reference Market-maker may, in good faith, agree. The party making the determination (or its agent) will request each Reference Market-maker to provide its quotation to the extent reasonably practicable as of the same day and time (without regard to different time zones) on or as soon as reasonably practicable after the relevant Early Termination Date. The day and time as of which those quotations are to be obtained will be selected in good faith by the party obliged to make a determination under Section 6(e), and, if each party is so obliged, after consultation with the other. If more than three quotations are provided, the Market Quotation will be the arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values. If exactly three such quotations are provided, the Market Quotation will be the quotation remaining after disregarding the highest and lowest quotations. For this purpose, if more than one quotation has the same highest value or lowest value, then one of such quotations shall be disregarded. If fewer than three quotations are provided, it will be deemed that the Market Quotation in respect of such Terminated Transaction or group of Terminated Transactions cannot be determined.

 

“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the Non-defaulting Party (as certified by it) if it were to fund the relevant amount.

 

“Non-defaulting Party” has the meaning specified in Section 6(a).

 

“Office” means a branch or office of a party, which may be such party’s head or home office.

 

“Potential Event of Default” means any event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

 

“Reference Market-makers” means four leading dealers in the relevant market selected by the party determining a Market Quotation in good faith (a) from among dealers of the highest credit standing which satisfy all the criteria that such party applies generally at the time in deciding whether to offer or to make an extension of credit and (b) to the extent practicable, from among such dealers having an office in the same city.

 

“Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office through which the party is acting for purposes of this Agreement is located, (c) in which the party executes this Agreement and (d) in relation to any payment, from or through which such payment is made.

 

“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section 2(a)(i) with respect to a Transaction.

 

“Set-off” means set-off, offset, combination of accounts, right of retention or withholding or similar right or requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising under this Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on, such payer.

 

“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of: —

 

(a)                                  the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for each Terminated Transaction or group of Terminated Transactions for which a Market Quotation is determined; and

 

(b)                                 such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts) for each Terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot be determined or would not (in the reasonable belief of the party making the determination) produce a commercially reasonable result.

 

“Specified Entity” has the meanings specified in the Schedule.

 

16



 

“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.

 

“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement with respect thereto) now existing or hereafter entered into between one party to this Agreement (or any Credit Support Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions), (b) any combination of these transactions and (c) any other transaction identified as a Specified Transaction in this Agreement or the relevant confirmation.

 

“Stamp Tax” means any stamp, registration, documentation or similar tax.

 

“Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including interest, penalties and additions thereto) that is imposed by any government or other taxing authority in respect of any payment under this Agreement other than a stamp, registration, documentation or similar tax.

 

“Tax Event” has the meaning specified in Section 5(b).

 

“Tax Event Upon Merger” has the meaning specified in Section 5(b).

 

“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all Transactions (in either case) in effect immediately before the effectiveness of the notice designating that Early Termination Date (or, if “Automatic Early Termination” applies, immediately before that Early Termination Date).

 

“Termination Currency” has the meaning specified in the Schedule.

 

“Termination Currency Equivalent” means, in respect of any amount denominated in the Termination Currency, such Termination Currency amount and, in respect of any amount denominated in a currency other than the Termination Currency (the “Other Currency”), the amount in the Termination Currency determined by the party making the relevant determination as being required to purchase such amount of such Other Currency as at the relevant Early Termination Date, or, if the relevant Market Quotation or Loss (as the case may be), is determined as of a later date, that later date, with the Termination Currency at the rate equal to the spot exchange rate of the foreign exchange agent (selected as provided below) for the purchase of such Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in which such foreign exchange agent is located) on such date as would be customary for the determination of such a rate for the purchase of such Other Currency for value on the relevant Early Termination Date or that later date. The foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), be selected in good faith by that party and otherwise will be agreed by the parties.

 

“Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event.

 

“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of funding such amounts.

 

“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would have become payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date and (b) in respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be settled by delivery to such party on or prior to such Early Termination Date and which has not been so settled as at such Early Termination Date, an amount equal to the fair market

 

17



 

value of that which was (or would have been)  required to be delivered as of the originally scheduled date for delivery, in each case together with (to the extent permitted under applicable law) interest, in the currency of such amounts, from (and including) the date such amounts or obligations were or would have been required to have been paid or performed to (but excluding) such Early Termination Date, at the Applicable Rate.  Such amounts of interest will be calculated on the basis of daily compounding and the actual number of days elapsed.  The fair market value of any obligation referred to in clause (b) above shall be reasonably determined by the party obliged to make the determination under Section 6(e) or, if each party is so obliged, it shall be the average of the Termination Currency Equivalents of the fair market values reasonably determined by both parties.

 

IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

CITIBANK, N.A.

 

WILMINGTON TRUST COMPANY

 

 

in its capacity as Subordination Agent on behalf of the

 

 

Trustee under the Class G-1 Trust Agreement

 

 

 

 

 

 

By:

/s/ Linda Cook

 

 

By:

/s/ Kathleen A. Pedelini

 

 

Name:  Linda Cook

 

 

 

Name:  Kathleen A. Pedelini

 

 

Title:    Vice President

 

 

 

Title:    Financial Services Officer

 

 

Copyright © 1994 by International Swaps and Derivatives Association, Inc.

 

18



 

(Multicurrency — Cross Border)

 

ISDA®

International Swap Dealers Association, Inc.

 

SCHEDULE

to the

Master Agreement

 

dated as of                                 

 

between

and

 

(“Party A”)

 

(“Party B”)

 

 

 

 

Part 1.               Termination Provisions.

(a)                          “Specified Entity” means in relation to Party A for the purpose of: —

Section 5(a)(v),

Section 5(a)(vi),

Section 5(a)(vii),

Section 5(b)(iv),

 

and in relation to Party B for the purpose of:—

 

Section 5(a)(v),

Section 5(a)(vi),

Section 5(a)(vii),

Section 5(b)(iv),

 

(b)                         “Specified Transaction” will have the meaning specified in Section 14 of this Agreement unless another meaning is specified here

 

 

(c)                          The “Cross Default” provisions of Section 5(a)(vi) will/will not * apply to Party A

will/will not * apply to Party B

 

If such provisions apply:—

 

“Specified Indebtedness” will have the meaning specified in Section 14 of this Agreement unless another meaning is specified here

 

 


*                                         Delete as applicable.

 

19



 

“Threshold Amount” means

 

 

(d)                                 The “Credit Event Upon Merger” provisions of Section 5(b)(iv) will/will not * apply to Party A

will/will not * apply to Party B

 

(e)                                  The “Automatic Early Termination” provision of Section 6(a) will/will not * apply to Party A

will/will not * apply to Party B

 

(f)                                    Payments on Early Termination. For the purpose of Section 6(e) of this Agreement: —

 

(i) Market Quotation/Loss * will apply.

 

(ii) The First Method/The Second Method * will apply.

 

(g)                                 “Termination Currency” means                                                  , if such currency is specified and freely available, and otherwise United States Dollars.

 

(h)                                 Additional Termination Event will/will not apply*. The following shall constitute an Additional

Termination Event: —

 

 

 

 

 

For the purpose of the foregoing Termination Event, the Affected Party or Affected Parties shall be: —

 

 

Part 2.               Tax Representations.

 

(a)                                  Payer Representations. For the purpose of Section 3(e) of this Agreement, Party A will/will not* make the following representation and Party B will/will not* make the following representation: —

 

It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement, provided that it shall not be a breach of this representation where reliance is placed on clause (ii) and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.

 

(b)                                 Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the representations specified below, if any:

 

(i) The following representation will/will not* apply to Party A and will/will not apply to Party B: —

 

It is fully eligible for the benefits of the “Business Profits” or “Industrial and Commercial Profits” provision, as the case may be, the “Interest” provision or the “Other Income” provision (if any) of the Specified Treaty with respect to any payment described in such provisions and received or to be received

 


*                                         Delete as applicable.

 

20



 

by it in connection with this Agreement and no such payment is attributable to a trade or business carried

on by it through a permanent establishment in the Specified Jurisdiction.

 

If such representation applies, then: —

 

“Specified Treaty” means with respect to Party A

 

“Specified Jurisdiction” means with respect to Party A

 

“Specified Treaty” means with respect to Party B

 

“Specified Jurisdiction” means with respect to Party B

 

(ii) The following representation will/will not* apply to Party A and will/will not* apply to Party B: —

 

Each payment received or to be received by it in connection with this Agreement will be effectively connected with its conduct of a trade or business in the Specified Jurisdiction.

 

If such representation applies, then: —

 

“Specified Jurisdiction” means with respect to Party A

 

“Specified Jurisdiction” means with respect to Party B

 

(iii) The following representation will/will not* apply to Party A and will/will not* apply to Party B: —

 

(A) It is entering into each Transaction in the ordinary course of its trade as, and is, either (1) a recognised U.K. bank or (2) a recognised U.K. swaps dealer (in either case (1) or (2), for purposes of the United Kingdom Inland Revenue extra statutory concession C17 on interest and currency swaps dated March 14, 1989), and (B) it will bring into account payments made and received in respect of each Transaction in computing its income for United Kingdom tax purposes.

 

(iv) Other Payee Representations: —

 

 

 

 

N.B. The above representations may need modification if either party is a Multibranch Party.

 


*                                         Delete as applicable.

 

21



 

Part 3. Agreement to Deliver Documents.

 

For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the following documents, as applicable: —

 

(a) Tax forms, documents or certificates to be delivered are: —

 

Party required to
deliver document

 

Form/Document/
Certificate

 

Date by which
to be delivered

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(b) Other documents to be delivered are: —

 

Party required to
deliver document

 

Form/Document/
Certificate

 

Date by which
to be delivered

 

Covered by
Section 3(d)
Representation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes/No*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes/No*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes/No*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes/No*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes/No*

 

 

 

 

 

 

 

 

 

 

Part 4. Miscellaneous.

 

(a)                                  Addresses for Notices. For the purpose of Section 12(a) of this Agreement: —

Address for notices or communications to Party A: —

Address:

Attention:

Telex No.:                                                                         Answerback:

Facsimile No.:                                                                  Telephone No:

Electronic Messaging System Details:

Address for notices or communications to Party B: —

Address:

Attention:

Telex No.:                                                                        Answerback:

 


*                                         Delete as applicable.

 

22



 

Facsimile No.:                                                             Telephone No.:

 

Electronic Messaging System Details:

 

(b)                                 Process Agent. For the purpose of Section 13(c) of this Agreement: —

 

Party A appoints as its Process Agent

 

Party B appoints as its Process Agent

 

(c)                                  Offices. The provisions of Section 10(a) will/will not* apply to this Agreement.

 

(d)                                 Multibranch Party. For the purpose of Section 10(c) of this Agreement: —

 

Party A is/is not* a Multibranch Party and, if so, may act through the following Offices: —

 

 

 

Party B is/is not* a Multibranch Party and, if so, may act through the following Offices: —

 

 

 

(e)                                  Calculation Agent. The Calculation Agent is                                                          , unless otherwise specified in a Confirmation in relation to the relevant Transaction.

 

(f)                                    Credit Support Document. Details of any Credit Support Document: —

 

 

 

(g)                                 Credit Support Provider. Credit Support Provider means in relation to Party A,

 

 

Credit Support Provider means in relation to Party B,

 

 

 

(h)                                 Governing Law. This Agreement will be governed by and construed in accordance with English law/the laws of the State of New York (without reference to choice of law doctrine) *.

 


*                                         Delete as applicable.

 

23



 

(i)                                     Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will not apply to the following Transactions or groups of Transactions (in each case starting from the date of this Agreement/in each case starting from                                                           *)

 

 

(j)                                     “Affiliate” will have the meaning specified in Section 14 of this Agreement unless another meaning is specified here

 

 

Part 5.               Other Provisions.

 


*                                         Delete as applicable.

 

24


EX-4.15 17 a04-11378_4ex4d15.htm EX-4.15

Exhibit 4.15

 

(Multicurrency – Cross Border)

 

ISDAÒ

International Swaps and Derivatives Association, Inc.

 

SCHEDULE

to the

Master Agreement

 

dated as of November 15, 2004

 

between

 

Citibank, N.A.,
a  national banking association duly organized and existing under the laws of the United States of America

 

(“Party A”)

 

and

 

Wilmington Trust Company,
a Delaware banking corporation, in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation with respect to the JetBlue Airways Pass Through Trust, Series 2004-2G1O (for purposes of this agreement only, the “Class G-1 Trust Agreement”)

 

(“Party B”)

 

Part 1

Termination Provisions

 

(a)                                  Specified Entity.  None.

 

(b)                                  Specified Transaction.  Specified Transaction will have the meaning specified in Section 14.

 

(c)                                  Events of Default.  The “Events of Default” set forth in Section 5(a) will not apply to Party B but will apply to Party A (subject to clause (d) below).

 

(d)                                  Cross Default.  The “Cross Default” provision of Section 5(a)(vi) will not apply.

 

(e)                                  Termination Events.  The “Illegality” provisions of Section 5(b)(i), the “Tax Event” provisions of Section 5(b)(ii), and the “Tax Event Upon Merger” provisions of Section 5(b)(iii) will apply to Party A but will not apply to Party B. Party A shall be the sole Affected Party (under Section 5(b)(i) and (ii)) and the sole Burdened Party (under Section 5(b)(iii)) with respect to a Termination Event.

 

(f)                                    Credit Event Upon Merger. The “Credit Event Upon Merger” provisions of Section 5(b)(iv)

 



 

shall not apply to Party A nor Party B.

 

(g)                                 Automatic Early Termination.  The “Automatic Early Termination” provision of Section 6(a) will not apply.

 

(h)                                 Right to Terminate Following Termination Event.  Sections 6(b)(ii)-(iv) are deleted in their entirety and replaced by the following:

 

“(ii)  Replacement on Termination Event.  Upon the occurrence of a Termination Event (other than an Additional Termination Event) with respect to Party A, Party A shall have the right within 20 days of the date of such Termination Event, at its own expense, to arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for such Above-Cap Liquidity Facility.  If Party A does not arrange for such replacement and if the Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 20th day (or if such 20th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of this Schedule.  For the avoidance of doubt, Party B shall have no right to designate an Early Termination Date following the occurrence of any Termination Event.

 

(i)                                    Calculations. The “Payment Date” provisions in Section 6(d)(ii) are deleted in their entirety and replaced by the following:

 

“The Termination Amount calculated as being due in respect of any Early Termination Date under Section 6(e) will be payable on such Early Termination Date.”

 

(j)                                    Payments on Early Termination.  Section 6(e) is deleted in its entirety and replaced with the following:

 

“Upon the occurrence or designation of an Early Termination Date with respect to the Transaction evidenced by the Confirmation, Party A shall make a termination payment to Party B on the Early Termination Date in an amount equal to the “Termination Amount” for the Early Termination Date for credit to the Above-Cap Reserve Account (as provided in Section 3.6(f) of the Intercreditor Agreement) to be applied as set forth in said Section 3.6(f) plus all Unpaid Amounts due and payable by Party A under the Confirmation on or prior to the Early Termination Date and upon such payments the Transaction evidenced by the Confirmation shall terminate.

 

Termination Amount” means, for any Early Termination Date, the amount obtained by solving the following formula for TA:

 

TA =   (20% per annum – CR) x N x F

 

where

 

CR =   the Cap Rate designated in the Confirmation

 

N =     the Notional Amount for such date

 

F = 0.256

 

2



 

For the avoidance of doubt, the Termination Amount shall not exceed US$[                       ] at any time.”

 

(k)                                Termination Currency.  “Termination Currency” means United States Dollars.

 

(l)                                    Additional Termination Event.  Additional Termination Event will apply solely as specified in the Confirmation.

 

(m)                              Limitations on Conditions Precedent.  Notwithstanding Section 2(a), the obligation of Party A to make each payment specified in the Confirmation, so long as it shall remain in effect, shall not be subject to any conditions precedent, and, without limiting the foregoing, Party A agrees that it will make each such payment without offset, counterclaim or defense.

 

Part 2

Tax Representations

 

(a)                                  Payer Tax Representations.  For the purpose of Section 3(e), Party A and Party B each make the following representation:

 

It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e) or 6(e)) to be made by it to the other party under this Agreement. In making this representation, it may rely on:

 

(i)                                     the accuracy of any representation made by the other party pursuant to Section 3(f);

 

(ii)                                  the satisfaction of the agreement of the other party contained in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii); and

 

(iii)                               the satisfaction of the agreement of the other party contained in Section 4(d);

 

provided that it shall not be a breach of this representation where reliance is placed on clause (ii), and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.

 

(b)                                  Payee Tax Representations. For the purpose of Section 3(f),

 

(i)                                     Party A represents that it is a national banking association duly organized and existing under the laws of the United States of America.

 

(ii)                                  Party B represents that it is a Delaware banking corporation.

 

Part 3

Agreement to Deliver Documents

 

For the purpose of Section 4(a)(ii) of this Agreement, each party agrees to deliver the following documents, as applicable:

 

3



 

Party required to
deliver documents

 

Form/Document/
Certificate

 

Date by which to be
delivered

 

Covered by
Section 3(d)
Representation

 

 

 

 

 

 

 

Party A and Party B

 

Evidence reasonably satisfactory to the other party as to the names, true signatures and authority of the officer or officials signing this Agreement or the Confirmation on its behalf

 

Upon execution of this Agreement and the related Confirmation

 

Yes

 

 

 

 

 

 

 

Party A

 

A copy of the annual report for Party A containing audited and certified financial statements for the most recently ended financial year

 

Upon request, as soon as publicly available

 

Yes

 

 

 

 

 

 

 

Party A

 

Opinions of counsel to Party A reasonably satisfactory in form and substance to Party B with respect to this Agreement

 

Upon execution of this Agreement

 

No

 

 

 

 

 

 

 

Party B

 

Certified copies of all documents evidencing the necessary corporate authorizations and approvals with respect to the execution, delivery, and performance of derivatives transactions

 

Upon execution of this Agreement

 

Yes

 

 

 

 

 

 

 

Party A

 

Correct, complete and executed U.S. Internal Revenue Form W-9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party B

 

Not applicable

 

 

 

 

 

 

 

Party B

 

Correct, complete and executed U.S. Internal Revenue Form W-9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party A

 

Not applicable

 

Part 4

Miscellaneous

 

(a)                                  Addresses for Notices.  For the purpose of Section 12(a):

 

4



 

(i)                                     Address for notices or communications to Party A (including all notices pursuant to Sections 5, 6 and 7 as well as any changes to Party B’s address, telephone number or facsimile number):

 

Address:                                               Citibank, N.A.

 

Attention:

Facsimile:

 

(ii)                                  Address for notices or communications to Party B:

 

Address:                                               Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

Attention:                                         Corporate Trust Administration

Telephone:                                    302-651-1000

Facsimile:                                            302-636-4140

 

(b)                                  Offices.  The provisions of Section 10(a) will apply to this Agreement.

 

(c)                                  Multibranch Party.  For the purpose of Section 10(c):

 

Party A is not a Multibranch Party.

Party B is not a Multibranch Party.

 

(d)                                  Calculation Agent.  The Calculation Agent is Party A, provided that if Party B disagrees with respect to any calculation or determination, Party A and Party B each will appoint an independent Reference Market-maker, and such two Reference Market-makers jointly will appoint a third Reference Market-maker. Such three Reference Market-makers jointly will make such calculation or determination (acting as experts and not as arbitrators), whose calculation or determination will be binding and conclusive absent manifest error.  In addition, if an Event of Default with respect to Party A has occurred and is continuing, Party B may appoint one of the following five entities as Calculation Agent: JP Morgan Chase, UBS AG, Bank of America, N.A., Deutsche Bank AG or Morgan Stanley Capital Services Inc.

 

(e)                                  Credit Support Documents.

 

With respect to Party A and Party B: None.

 

(f)                                    Credit Support Provider.

 

Credit Support Provider means in relation to Party A: None.

 

Credit Support Provider means in relation to Party B: None.

 

(g)                                 Governing Law.  This Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

(h)                                 Jurisdiction.  Section 13(b) is hereby amended by: (i) deleting in the second line of subparagraph (i) thereof the word “non-”; and (ii) deleting the final paragraph thereof.

 

5



 

(i)                                    Netting of Payments.  The Netting provision set forth in Section 2(c) will not apply to any Transaction.

 

(j)                                    Affiliate.  Affiliate will have the meaning specified in Section 14.

 

(k)                                Covered Transaction.  The Transaction evidenced by the Confirmation dated the date of this Agreement (Reference Number: ) will constitute the only Transaction and Confirmation supplementing, forming part of, and subject to, this Agreement.

 

Part 5

Other Provisions

 

(a)                                  Definitions.  This Agreement and the Transaction between the parties are subject to the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (collectively, the “Definitions”), and will be governed in all relevant respects by the provisions set forth in the Definitions, without regard to any amendment to the Definitions subsequent to the date hereof. The provisions of the Definitions are incorporated by reference in and shall be deemed a part of this Agreement, except that references in the Definitions to a “Swap Transaction” shall be deemed references to a “Transaction” for purposes of this Agreement. In the event of any inconsistency between the provisions of this Agreement and the Definitions, this Agreement will prevail.  “Intercreditor Agreement” as used in this Agreement shall mean the Intercreditor Agreement dated as of November 15, 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation as Policy Provider and Wilmington Trust Company as Subordination Agent, attached hereto as Exhibit A.  Capitalized terms used and not defined herein, the Confirmation, or the Definitions shall have the meanings set forth in the Intercreditor Agreement, as amended or modified from time to time in accordance with the terms thereof.

 

(b)                                  Relationship Between Parties.  Each party will be deemed to represent to the other party on the date on which it enters into the Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):

 

(i)                                     Non-Reliance.  It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary.  It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction.  No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

(ii)                                  Assessment and Understanding.  It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.  It is also capable of assuming,

 

6



 

and assumes, the risks of the Transaction

 

(iii)                               Status of Parties.  The other party is not acting as a fiduciary for or an adviser to it in respect of the Transaction.

 

(c)                                  WAIVER OF JURY TRIAL.  EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHT TO JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTION.

 

(d)                                  Non-petition.  Party A agrees that it will not, prior to the date that is one year and one day following the final payment of the Certificates, acquiesce, petition or otherwise invoke or cause, or join in invoking or causing, Party B or any other person or entity to invoke the process of any governmental authority for the purpose of commencing or sustaining a case (whether voluntary or involuntary) against Party B under any bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Party B or any substantial part of its property or ordering the winding-up or liquidation of the affairs of Party B, provided, however, that nothing herein shall restrict or prohibit Party A from joining in any existing bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings or other analogous proceedings under applicable laws.

 

(e)                                  Waiver of Right of Set-off. Notwithstanding any provision of this Agreement, the Confirmation or any other existing or future agreement between the parties hereto, each party irrevocably waives any and all rights it may have to set-off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation between the two parties hereunder against any obligations between the two parties, whether arising under any agreement, applicable law or otherwise.

 

(f)                                    Amendments.  This Agreement is hereby further amended as follows:

 

(1)                                  Section 2(b) is hereby amended by the insertion of the following at the end thereof after the word “change”: “provided that if such new account shall not be in the same jurisdiction having the same power to tax as the original account, the party not changing its account shall not be obliged to pay any greater amounts and shall not receive less as a result of such change than would have been the case if such change had not taken place.”

 

(2)                                  Section 2(d) is amended by adding thereto a new final sentence reading as follows: “Anything in this Section 2(d) to the contrary notwithstanding, Party B shall not be obligated to make any payment under this Section 2(d) to Party A”.

 

(3)                                  Section 7 is amended by adding a new penultimate sentence to Section 7 as follows: “Any purported transfer under this Section 7, including, for the avoidance of doubt, any transfer pursuant to Section 6(b)(ii), shall require Ratings Confirmation”.

 

(4)                                  Section 9(b) is amended by adding thereto a new sentence reading as follows: “In addition, no amendment, modification or waiver in respect of this Agreement will be effective unless Ratings Confirmation is received.”

 

(g)                                 Limitation of Liability.  The obligations of Party B under this Agreement, and in respect of the Transaction evidenced by the Confirmation, are expressly limited to the extent of funds, if any, made available for such payment to Party B under, and in accordance with, the priorities of payments set forth in Sections 3.2 and 3.6 of the Intercreditor Agreement.  No recourse under any

 

7



 

obligation, covenant or agreement of Party B contained in this Agreement or the Confirmation shall be had against any incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of Party B contained in this Agreement or the Confirmation are solely trust obligations of Party B and that no personal liability whatsoever shall attach to or be incurred by the incorporators, stockholders, agents, affiliates, officers, employees or trustees of Party B, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of Party B contained in this Agreement or the Confirmation and that any and all personal liability of every such incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B for breaches by Party B of any such obligation, covenant or agreement, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided, however, that nothing in this paragraph shall relieve any of the foregoing persons from any liability which any such person may otherwise have for his/her or its gross negligence or willful misconduct or, with respect to the handling or transfer of funds, ordinary negligence.

 

(h)                                 Eligible Contract Participant.  Each party represents to the other that it is an “eligible contract participant” as defined in Section 1a(12) of the Commodity Exchange Act of 1922 (7 U.S. Code §1 et seq.) as amended (“CEA”). This Agreement and the Transaction hereunder are subject to individual negotiation by the parties. Neither this Agreement nor the Transaction hereunder has been executed or traded on a “trading facility” as defined in Section 1a(33) of the CEA.

 

(i)                                    Accuracy of Specified Information.  Section 3(d) is hereby amended by adding in the third line thereof after the word “respect” and before the period the words “or, in the case of audited or unaudited financial statements or balance sheets, a fair representation of the financial condition of the relevant person.”

 

[Signatures follow on separate page]

 

8



 

IN WITNESS WHEREOF the parties have executed this Schedule to the ISDA Master Agreement on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

 

CITIBANK, N.A.

 

 

 

 

 

By:

/s/ Linda Cook

 

 

Name:

Linda Cook

 

 

Title:

Vice President

 

 

Date:

 

 

 

 

 

 

 

WILMINGTON TRUST COMPANY

 

in its capacity as Subordination Agent on behalf of the Trustee under the Class G-1 Trust Agreement.

 

 

 

 

 

By:

/s/ Kathleen A. Pedelini

 

 

Name:

Kathleen A. Pedelini

 

 

Title:

Fianancial Services Officer

 

 

Date:

 

 

 


EX-4.16 18 a04-11378_4ex4d16.htm EX-4.16

Exhibit 4.16

 

(Multicurrency – Cross Border)

 

ISDAÒ

International Swaps and Derivatives Association, Inc.

 

SCHEDULE

to the

Master Agreement

 

dated as of November 15, 2004

 

between

 

Citibank, N.A.,
a  national banking association duly organized and existing under the laws of the United States of America

 

(“Party A”)

 

and

 

Wilmington Trust Company,
a Delaware banking corporation, in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation with respect to the JetBlue Airways Pass Through Trust, Series 2004–2G–2–O (for purposes of this agreement only, the “Class G–2 Trust Agreement”)

 

(“Party B”)

 

Part 1

Termination Provisions

 

(a)                                  Specified Entity.  None.

 

(b)                                  Specified Transaction.  Specified Transaction will have the meaning specified in Section 14.

 

(c)                                  Events of Default.  The “Events of Default” set forth in Section 5(a) will not apply to Party B but will apply to Party A (subject to clause (d) below).

 

(d)                                  Cross Default.  The “Cross Default” provision of Section 5(a)(vi) will not apply.

 

(e)                                  Termination Events.  The “Illegality” provisions of Section 5(b)(i), the “Tax Event” provisions of Section 5(b)(ii), and the “Tax Event Upon Merger” provisions of Section 5(b)(iii) will apply to Party A but will not apply to Party B. Party A shall be the sole Affected Party (under Section 5(b)(i) and (ii)) and the sole Burdened Party (under Section 5(b)(iii)) with respect to a Termination Event.

 

(f)                                    Credit Event Upon Merger. The “Credit Event Upon Merger” provisions of Section 5(b)(iv)

 



 

shall not apply to Party A nor Party B.

 

(g)                                 Automatic Early Termination.  The “Automatic Early Termination” provision of Section 6(a) will not apply.

 

(h)                                 Right to Terminate Following Termination Event.  Sections 6(b)(ii)-(iv) are deleted in their entirety and replaced by the following:

 

“(ii)  Replacement on Termination Event.  Upon the occurrence of a Termination Event (other than an Additional Termination Event) with respect to Party A, Party A shall have the right within 20 days of the date of such Termination Event, at its own expense, to arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for such Above-Cap Liquidity Facility.  If Party A does not arrange for such replacement and if the Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 20th day (or if such 20th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of this Schedule.  For the avoidance of doubt, Party B shall have no right to designate an Early Termination Date following the occurrence of any Termination Event.

 

(i)                                    Calculations. The “Payment Date” provisions in Section 6(d)(ii) are deleted in their entirety and replaced by the following:

 

“The Termination Amount calculated as being due in respect of any Early Termination Date under Section 6(e) will be payable on such Early Termination Date.”

 

(j)                                    Payments on Early Termination.  Section 6(e) is deleted in its entirety and replaced with the following:

 

“Upon the occurrence or designation of an Early Termination Date with respect to the Transaction evidenced by the Confirmation, Party A shall make a termination payment to Party B on the Early Termination Date in an amount equal to the “Termination Amount” for the Early Termination Date for credit to the Above-Cap Reserve Account (as provided in Section 3.6(f) of the Intercreditor Agreement) to be applied as set forth in said Section 3.6(f) plus all Unpaid Amounts due and payable by Party A under the Confirmation on or prior to the Early Termination Date and upon such payments the Transaction evidenced by the Confirmation shall terminate.

 

Termination Amount” means, for any Early Termination Date, the amount obtained by solving the following formula for TA:

 

TA =                    (20% per annum – CR) x N x F

 

where

 

CR =                      the Cap Rate designated in the Confirmation

 

N =                             the Notional Amount for such date

 

F = 0.256

 

2



 

For the avoidance of doubt, the Termination Amount shall not exceed US$[                          ] at any time.”

 

(k)                                Termination Currency.  “Termination Currency” means United States Dollars.

 

(l)                                    Additional Termination Event.  Additional Termination Event will apply solely as specified in the Confirmation.

 

(m)                              Limitations on Conditions Precedent.  Notwithstanding Section 2(a), the obligation of Party A to make each payment specified in the Confirmation, so long as it shall remain in effect, shall not be subject to any conditions precedent, and, without limiting the foregoing, Party A agrees that it will make each such payment without offset, counterclaim or defense.

 

Part 2

Tax Representations

 

(a)                                  Payer Tax Representations.  For the purpose of Section 3(e), Party A and Party B each make the following representation:

 

It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e) or 6(e)) to be made by it to the other party under this Agreement. In making this representation, it may rely on:

 

(i)                                     the accuracy of any representation made by the other party pursuant to Section 3(f);

 

(ii)                                  the satisfaction of the agreement of the other party contained in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii); and

 

(iii)                               the satisfaction of the agreement of the other party contained in Section 4(d);

 

provided that it shall not be a breach of this representation where reliance is placed on clause (ii), and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.

 

(b)                                  Payee Tax Representations. For the purpose of Section 3(f),

 

(i)                                     Party A represents that it is a national banking association duly organized and existing under the laws of the United States of America.

 

(ii)                                  Party B represents that it is a Delaware banking corporation.

 

Part 3

Agreement to Deliver Documents

 

For the purpose of Section 4(a)(ii) of this Agreement, each party agrees to deliver the following documents, as applicable:

 

3



 

Party required to
deliver documents

 

Form/Document/
Certificate

 

Date by which to be
delivered

 

Covered by
Section3(d)
Representation

 

 

 

 

 

 

 

Party A and Party B

 

Evidence reasonably satisfactory to the other party as to the names, true signatures and authority of the officer or officials signing this Agreement or the Confirmation on its behalf

 

Upon execution of this Agreement and the related Confirmation

 

Yes

 

 

 

 

 

 

 

Party A

 

A copy of the annual report for Party A containing audited and certified financial statements for the most recently ended financial year

 

Upon request, as soon as publicly available

 

Yes

 

 

 

 

 

 

 

Party A

 

Opinions of counsel to Party A reasonably satisfactory in form and substance to Party B with respect to this Agreement

 

Upon execution of this Agreement

 

No

 

 

 

 

 

 

 

Party B

 

Certified copies of all documents evidencing the necessary corporate authorizations and approvals with respect to the execution, delivery, and performance of derivatives transactions

 

Upon execution of this Agreement

 

Yes

 

 

 

 

 

 

 

Party A

 

Correct, complete and executed U.S. Internal Revenue Form W–9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party B

 

Not applicable

 

 

 

 

 

 

 

Party B

 

Correct, complete and executed U.S. Internal Revenue Form W–9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party A

 

Not applicable

 

Part 4

Miscellaneous

 

(a)                                  Addresses for Notices.  For the purpose of Section 12(a):

 

4



 

(i)                                     Address for notices or communications to Party A (including all notices pursuant to Sections 5, 6 and 7 as well as any changes to Party B’s address, telephone number or facsimile number):

 

Address:                                               Citibank, N.A.

 

Attention:

Facsimile:

 

(ii)                                  Address for notices or communications to Party B:

 

Address:                                               Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

Attention:                                         Corporate Trust Administration

Telephone:                                    302-651-1000

Facsimile:                                            302-636-4140

 

(b)                                  Offices.  The provisions of Section 10(a) will apply to this Agreement.

 

(c)                                  Multibranch Party.  For the purpose of Section 10(c):

 

Party A is not a Multibranch Party.

Party B is not a Multibranch Party.

 

(d)                                  Calculation Agent.  The Calculation Agent is Party A, provided that if Party B disagrees with respect to any calculation or determination, Party A and Party B each will appoint an independent Reference Market-maker, and such two Reference Market-makers jointly will appoint a third Reference Market-maker. Such three Reference Market-makers jointly will make such calculation or determination (acting as experts and not as arbitrators), whose calculation or determination will be binding and conclusive absent manifest error.  In addition, if an Event of Default with respect to Party A has occurred and is continuing, Party B may appoint one of the following five entities as Calculation Agent: JP Morgan Chase, UBS AG, Bank of America, N.A., Deutsche Bank AG or Morgan Stanley Capital Services Inc.

 

(e)                                  Credit Support Documents.

 

With respect to Party A and Party B: None.

 

(f)                                    Credit Support Provider.

 

Credit Support Provider means in relation to Party A: None.

 

Credit Support Provider means in relation to Party B: None.

 

(g)                                 Governing Law.  This Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

(h)                                 Jurisdiction.  Section 13(b) is hereby amended by: (i) deleting in the second line of subparagraph (i) thereof the word “non-”; and (ii) deleting the final paragraph thereof.

 

5



 

(i)                                    Netting of Payments.  The Netting provision set forth in Section 2(c) will not apply to any Transaction.

 

(j)                                    Affiliate.  Affiliate will have the meaning specified in Section 14.

 

(k)                                Covered Transaction.  The Transaction evidenced by the Confirmation dated the date of this Agreement (Reference Number: ) will constitute the only Transaction and Confirmation supplementing, forming part of, and subject to, this Agreement.

 

Part 5

Other Provisions

 

(a)                                  Definitions.  This Agreement and the Transaction between the parties are subject to the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (collectively, the “Definitions”), and will be governed in all relevant respects by the provisions set forth in the Definitions, without regard to any amendment to the Definitions subsequent to the date hereof. The provisions of the Definitions are incorporated by reference in and shall be deemed a part of this Agreement, except that references in the Definitions to a “Swap Transaction” shall be deemed references to a “Transaction” for purposes of this Agreement. In the event of any inconsistency between the provisions of this Agreement and the Definitions, this Agreement will prevail.  “Intercreditor Agreement” as used in this Agreement shall mean the Intercreditor Agreement dated as of November[ ], 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation as Policy Provider and Wilmington Trust Company as Subordination Agent, attached hereto as Exhibit A.  Capitalized terms used and not defined herein, the Confirmation, or the Definitions shall have the meanings set forth in the Intercreditor Agreement, as amended or modified from time to time in accordance with the terms thereof.

 

(b)                                  Relationship Between Parties.  Each party will be deemed to represent to the other party on the date on which it enters into the Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):

 

(i)                                     Non-Reliance.  It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary.  It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction.  No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

(ii)                                  Assessment and Understanding.  It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.  It is also capable of assuming,

 

6



 

and assumes, the risks of the Transaction

 

(iii)                               Status of Parties.  The other party is not acting as a fiduciary for or an adviser to it in respect of the Transaction.

 

(c)                                  WAIVER OF JURY TRIAL.  EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHT TO JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTION.

 

(d)                                  Non-petition.  Party A agrees that it will not, prior to the date that is one year and one day following the final payment of the Certificates, acquiesce, petition or otherwise invoke or cause, or join in invoking or causing, Party B or any other person or entity to invoke the process of any governmental authority for the purpose of commencing or sustaining a case (whether voluntary or involuntary) against Party B under any bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Party B or any substantial part of its property or ordering the winding-up or liquidation of the affairs of Party B, provided, however, that nothing herein shall restrict or prohibit Party A from joining in any existing bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings or other analogous proceedings under applicable laws.

 

(e)                                  Waiver of Right of Set-off. Notwithstanding any provision of this Agreement, the Confirmation or any other existing or future agreement between the parties hereto, each party irrevocably waives any and all rights it may have to set-off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation between the two parties hereunder against any obligations between the two parties, whether arising under any agreement, applicable law or otherwise.

 

(f)                                    Amendments.  This Agreement is hereby further amended as follows:

 

(1)                                  Section 2(b) is hereby amended by the insertion of the following at the end thereof after the word “change”: “provided that if such new account shall not be in the same jurisdiction having the same power to tax as the original account, the party not changing its account shall not be obliged to pay any greater amounts and shall not receive less as a result of such change than would have been the case if such change had not taken place.”

 

(2)                                  Section 2(d) is amended by adding thereto a new final sentence reading as follows: “Anything in this Section 2(d) to the contrary notwithstanding, Party B shall not be obligated to make any payment under this Section 2(d) to Party A”.

 

(3)                                  Section 7 is amended by adding a new penultimate sentence to Section 7 as follows: “Any purported transfer under this Section 7, including, for the avoidance of doubt, any transfer pursuant to Section 6(b)(ii), shall require Ratings Confirmation”.

 

(4)                                  Section 9(b) is amended by adding thereto a new sentence reading as follows: “In addition, no amendment, modification or waiver in respect of this Agreement will be effective unless Ratings Confirmation is received.”

 

(g)                                 Limitation of Liability.  The obligations of Party B under this Agreement, and in respect of the Transaction evidenced by the Confirmation, are expressly limited to the extent of funds, if any, made available for such payment to Party B under, and in accordance with, the priorities of payments set forth in Sections 3.2 and 3.6 of the Intercreditor Agreement.  No recourse under any

 

7



 

obligation, covenant or agreement of Party B contained in this Agreement or the Confirmation shall be had against any incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of Party B contained in this Agreement or the Confirmation are solely trust obligations of Party B and that no personal liability whatsoever shall attach to or be incurred by the incorporators, stockholders, agents, affiliates, officers, employees or trustees of Party B, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of Party B contained in this Agreement or the Confirmation and that any and all personal liability of every such incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B for breaches by Party B of any such obligation, covenant or agreement, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided, however, that nothing in this paragraph shall relieve any of the foregoing persons from any liability which any such person may otherwise have for his/her or its gross negligence or willful misconduct or, with respect to the handling or transfer of funds, ordinary negligence.

 

(h)                                 Eligible Contract Participant.  Each party represents to the other that it is an “eligible contract participant” as defined in Section 1a(12) of the Commodity Exchange Act of 1922 (7 U.S. Code §1 et seq.) as amended (“CEA”). This Agreement and the Transaction hereunder are subject to individual negotiation by the parties. Neither this Agreement nor the Transaction hereunder has been executed or traded on a “trading facility” as defined in Section 1a(33) of the CEA.

 

(i)                                    Accuracy of Specified Information.  Section 3(d) is hereby amended by adding in the third line thereof after the word “respect” and before the period the words “or, in the case of audited or unaudited financial statements or balance sheets, a fair representation of the financial condition of the relevant person.”

 

[Signatures follow on separate page]

 

8



 

IN WITNESS WHEREOF the parties have executed this Schedule to the ISDA Master Agreement on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

 

CITIBANK, N.A.

 

 

 

 

 

By:

/s/ Linda Cook

 

 

Name:

Linda Cook

 

 

Title:

Vice President

 

 

Date:

 

 

 

 

 

 

 

WILMINGTON TRUST COMPANY

 

in its capacity as Subordination Agent on behalf of the Trustee under the Class G-2 Trust Agreement.

 

 

 

 

 

By:

/s/ Kathleen A. Pedelini

 

 

Name:

Kathleen A. Pedelini

 

 

Title:

Financial Services Officer

 

 

Date:

 

 

 


EX-4.17 19 a04-11378_4ex4d17.htm EX-4.17

Exhibit 4.17

 

(Multicurrency – Cross Border)

 

ISDAÒ

International Swaps and Derivatives Association, Inc.

 

SCHEDULE

to the

Master Agreement

dated as of November 15, 2004

 

between

 

Citibank, N.A.,
a  national banking association duly organized and existing under the laws of the United States of America

 

(“Party A”)

 

and

 

Wilmington Trust Company,
a Delaware banking corporation, in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation with respect to the JetBlue Airways Pass Through Trust, Series 2004–2C–O (for purposes of this agreement only, the “Class C Trust Agreement”)

 

(“Party B”)

 

Part 1

Termination Provisions

 

(a)                                  Specified Entity.  None.

 

(b)                                  Specified Transaction.  Specified Transaction will have the meaning specified in Section 14.

 

(c)                                  Events of Default.  The “Events of Default” set forth in Section 5(a) will not apply to Party B but will apply to Party A (subject to clause (d) below).

 

(d)                                  Cross Default.  The “Cross Default” provision of Section 5(a)(vi) will not apply.

 

(e)                                  Termination Events.  The “Illegality” provisions of Section 5(b)(i), the “Tax Event” provisions of Section 5(b)(ii), and the “Tax Event Upon Merger” provisions of Section 5(b)(iii) will apply to Party A but will not apply to Party B. Party A shall be the sole Affected Party (under Section 5(b)(i) and (ii)) and the sole Burdened Party (under Section 5(b)(iii)) with respect to a Termination Event.

 

(f)                                    Credit Event Upon Merger. The “Credit Event Upon Merger” provisions of Section 5(b)(iv)

 



 

shall not apply to Party A nor Party B.

 

(g)                                 Automatic Early Termination.  The “Automatic Early Termination” provision of Section 6(a) will not apply.

 

(h)                                 Right to Terminate Following Termination Event.  Sections 6(b)(ii)-(iv) are deleted in their entirety and replaced by the following:

 

“(ii)  Replacement on Termination Event.  Upon the occurrence of a Termination Event (other than an Additional Termination Event) with respect to Party A, Party A shall have the right within 20 days of the date of such Termination Event, at its own expense, to arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for such Above-Cap Liquidity Facility.  If Party A does not arrange for such replacement and if the Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 20th day (or if such 20th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of this Schedule.  For the avoidance of doubt, Party B shall have no right to designate an Early Termination Date following the occurrence of any Termination Event.

 

(i)                                    Calculations. The “Payment Date” provisions in Section 6(d)(ii) are deleted in their entirety and replaced by the following:

 

“The Termination Amount calculated as being due in respect of any Early Termination Date under Section 6(e) will be payable on such Early Termination Date.”

 

(j)                                    Payments on Early Termination.  Section 6(e) is deleted in its entirety and replaced with the following:

 

“Upon the occurrence or designation of an Early Termination Date with respect to the Transaction evidenced by the Confirmation, Party A shall make a termination payment to Party B on the Early Termination Date in an amount equal to the “Termination Amount” for the Early Termination Date for credit to the Above-Cap Reserve Account (as provided in Section 3.6(f) of the Intercreditor Agreement) to be applied as set forth in said Section 3.6(f) plus all Unpaid Amounts due and payable by Party A under the Confirmation on or prior to the Early Termination Date and upon such payments the Transaction evidenced by the Confirmation shall terminate.

 

Termination Amount” means, for any Early Termination Date, the amount obtained by solving the following formula for TA:

 

TA =                    (20% per annum – CR) x N x F

 

where

 

CR =                      the Cap Rate designated in the Confirmation

 

N =                             the Notional Amount for such date

 

F = 0.256

 

2



 

For the avoidance of doubt, the Termination Amount shall not exceed US$[                      ] at any time.”

 

(k)                                Termination Currency.  “Termination Currency” means United States Dollars.

 

(l)                                    Additional Termination Event.  Additional Termination Event will apply solely as specified in the Confirmation.

 

(m)                              Limitations on Conditions Precedent.  Notwithstanding Section 2(a), the obligation of Party A to make each payment specified in the Confirmation, so long as it shall remain in effect, shall not be subject to any conditions precedent, and, without limiting the foregoing, Party A agrees that it will make each such payment without offset, counterclaim or defense.

 

Part 2

Tax Representations

 

(a)                                  Payer Tax Representations.  For the purpose of Section 3(e), Party A and Party B each make the following representation:

 

It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e) or 6(e)) to be made by it to the other party under this Agreement. In making this representation, it may rely on:

 

(i)                                     the accuracy of any representation made by the other party pursuant to Section 3(f);

 

(ii)                                  the satisfaction of the agreement of the other party contained in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii); and

 

(iii)                               the satisfaction of the agreement of the other party contained in Section 4(d);

 

provided that it shall not be a breach of this representation where reliance is placed on clause (ii), and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.

 

(b)                                  Payee Tax Representations. For the purpose of Section 3(f),

 

(i)                                     Party A represents that it is a national banking association duly organized and existing under the laws of the United States of America.

 

(ii)                                  Party B represents that it is a Delaware banking corporation.

 

Part 3

Agreement to Deliver Documents

 

For the purpose of Section 4(a)(ii) of this Agreement, each party agrees to deliver the following documents, as applicable:

 

3



 

Party required to
deliver documents

 

Form/Document/
Certificate

 

Date by which to be
delivered

 

Covered by
Section 3(d)
Representation

 

 

 

 

 

 

 

Party A and Party B

 

Evidence reasonably satisfactory to the other party as to the names, true signatures and authority of the officer or officials signing this Agreement or the Confirmation on its behalf

 

Upon execution of this Agreement and the related Confirmation

 

Yes

 

 

 

 

 

 

 

Party A

 

A copy of the annual report for Party A containing audited and certified financial statements for the most recently ended financial year

 

Upon request, as soon as publicly available

 

Yes

 

 

 

 

 

 

 

Party A

 

Opinions of counsel to Party A reasonably satisfactory in form and substance to Party B with respect to this Agreement

 

Upon execution of this Agreement

 

No

 

 

 

 

 

 

 

Party B

 

Certified copies of all documents evidencing the necessary corporate authorizations and approvals with respect to the execution, delivery, and performance of derivatives transactions

 

Upon execution of this Agreement

 

Yes

 

 

 

 

 

 

 

Party A

 

Correct, complete and executed U.S. Internal Revenue Form W–9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party B

 

Not applicable

 

 

 

 

 

 

 

Party B

 

Correct, complete and executed U.S. Internal Revenue Form W–9 or any successor thereto

 

Upon execution of this Agreement, upon the appointment of a successor Subordination Agent, and at any time upon reasonable request by Party A

 

Not applicable

 

Part 4

Miscellaneous

 

(a)                                  Addresses for Notices.  For the purpose of Section 12(a):

 

4



 

(i)                                     Address for notices or communications to Party A (including all notices pursuant to Sections 5, 6 and 7 as well as any changes to Party B’s address, telephone number or facsimile number):

 

Address:                                               Citibank, N.A.

 

Attention:

Facsimile:

 

(ii)                                  Address for notices or communications to Party B:

 

Address:                                               Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

Attention:                                         Corporate Trust Administration

Telephone:                                    302-651-1000

Facsimile:                                            302-636-4140

 

(b)                                  Offices.  The provisions of Section 10(a) will apply to this Agreement.

 

(c)                                  Multibranch Party.  For the purpose of Section 10(c):

 

Party A is not a Multibranch Party.

Party B is not a Multibranch Party.

 

(d)                                  Calculation Agent.  The Calculation Agent is Party A, provided that if Party B disagrees with respect to any calculation or determination, Party A and Party B each will appoint an independent Reference Market-maker, and such two Reference Market-makers jointly will appoint a third Reference Market-maker. Such three Reference Market-makers jointly will make such calculation or determination (acting as experts and not as arbitrators), whose calculation or determination will be binding and conclusive absent manifest error.  In addition, if an Event of Default with respect to Party A has occurred and is continuing, Party B may appoint one of the following five entities as Calculation Agent: JP Morgan Chase, UBS AG, Bank of America, N.A., Deutsche Bank AG or Morgan Stanley Capital Services Inc.

 

(e)                                  Credit Support Documents.

 

With respect to Party A and Party B: None.

 

(f)                                    Credit Support Provider.

 

Credit Support Provider means in relation to Party A: None.

 

Credit Support Provider means in relation to Party B: None.

 

(g)                                 Governing Law.  This Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

(h)                                 Jurisdiction.  Section 13(b) is hereby amended by: (i) deleting in the second line of subparagraph (i) thereof the word “non-”; and (ii) deleting the final paragraph thereof.

 

5



 

(i)                                    Netting of Payments.  The Netting provision set forth in Section 2(c) will not apply to any Transaction.

 

(j)                                    Affiliate.  Affiliate will have the meaning specified in Section 14.

 

(k)                                Covered Transaction.  The Transaction evidenced by the Confirmation dated the date of this Agreement (Reference Number: ) will constitute the only Transaction and Confirmation supplementing, forming part of, and subject to, this Agreement.

 

Part 5

Other Provisions

 

(a)                                  Definitions.  This Agreement and the Transaction between the parties are subject to the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (collectively, the “Definitions”), and will be governed in all relevant respects by the provisions set forth in the Definitions, without regard to any amendment to the Definitions subsequent to the date hereof. The provisions of the Definitions are incorporated by reference in and shall be deemed a part of this Agreement, except that references in the Definitions to a “Swap Transaction” shall be deemed references to a “Transaction” for purposes of this Agreement. In the event of any inconsistency between the provisions of this Agreement and the Definitions, this Agreement will prevail.  “Intercreditor Agreement” as used in this Agreement shall mean the Intercreditor Agreement dated as of November 15, 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation as Policy Provider and Wilmington Trust Company as Subordination Agent, attached hereto as Exhibit A.  Capitalized terms used and not defined herein, the Confirmation, or the Definitions shall have the meanings set forth in the Intercreditor Agreement, as amended or modified from time to time in accordance with the terms thereof.

 

(b)                                  Relationship Between Parties.  Each party will be deemed to represent to the other party on the date on which it enters into the Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):

 

(i)                                     Non-Reliance.  It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary.  It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction.  No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.

 

(ii)                                  Assessment and Understanding.  It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.  It is also capable of assuming,

 

6



 

and assumes, the risks of the Transaction

 

(iii)                               Status of Parties.  The other party is not acting as a fiduciary for or an adviser to it in respect of the Transaction.

 

(c)                                  WAIVER OF JURY TRIAL.  EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHT TO JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTION.

 

(d)                                  Non-petition.  Party A agrees that it will not, prior to the date that is one year and one day following the final payment of the Certificates, acquiesce, petition or otherwise invoke or cause, or join in invoking or causing, Party B or any other person or entity to invoke the process of any governmental authority for the purpose of commencing or sustaining a case (whether voluntary or involuntary) against Party B under any bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Party B or any substantial part of its property or ordering the winding-up or liquidation of the affairs of Party B, provided, however, that nothing herein shall restrict or prohibit Party A from joining in any existing bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings or other analogous proceedings under applicable laws.

 

(e)                                  Waiver of Right of Set-off. Notwithstanding any provision of this Agreement, the Confirmation or any other existing or future agreement between the parties hereto, each party irrevocably waives any and all rights it may have to set-off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation between the two parties hereunder against any obligations between the two parties, whether arising under any agreement, applicable law or otherwise.

 

(f)                                    Amendments.  This Agreement is hereby further amended as follows:

 

(1)                                  Section 2(b) is hereby amended by the insertion of the following at the end thereof after the word “change”: “provided that if such new account shall not be in the same jurisdiction having the same power to tax as the original account, the party not changing its account shall not be obliged to pay any greater amounts and shall not receive less as a result of such change than would have been the case if such change had not taken place.”

 

(2)                                  Section 2(d) is amended by adding thereto a new final sentence reading as follows: “Anything in this Section 2(d) to the contrary notwithstanding, Party B shall not be obligated to make any payment under this Section 2(d) to Party A”.

 

(3)                                  Section 7 is amended by adding a new penultimate sentence to Section 7 as follows: “Any purported transfer under this Section 7, including, for the avoidance of doubt, any transfer pursuant to Section 6(b)(ii), shall require Ratings Confirmation”.

 

(4)                                  Section 9(b) is amended by adding thereto a new sentence reading as follows: “In addition, no amendment, modification or waiver in respect of this Agreement will be effective unless Ratings Confirmation is received.”

 

(g)                                 Limitation of Liability.  The obligations of Party B under this Agreement, and in respect of the Transaction evidenced by the Confirmation, are expressly limited to the extent of funds, if any, made available for such payment to Party B under, and in accordance with, the priorities of payments set forth in Sections 3.2 and 3.6 of the Intercreditor Agreement.  No recourse under any

 

7



 

obligation, covenant or agreement of Party B contained in this Agreement or the Confirmation shall be had against any incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of Party B contained in this Agreement or the Confirmation are solely trust obligations of Party B and that no personal liability whatsoever shall attach to or be incurred by the incorporators, stockholders, agents, affiliates, officers, employees or trustees of Party B, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of Party B contained in this Agreement or the Confirmation and that any and all personal liability of every such incorporator, stockholder, agent, affiliate, officer, employee or trustee of Party B for breaches by Party B of any such obligation, covenant or agreement, which liability may arise either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided, however, that nothing in this paragraph shall relieve any of the foregoing persons from any liability which any such person may otherwise have for his/her or its gross negligence or willful misconduct or, with respect to the handling or transfer of funds, ordinary negligence.

 

(h)                                 Eligible Contract Participant.  Each party represents to the other that it is an “eligible contract participant” as defined in Section 1a(12) of the Commodity Exchange Act of 1922 (7 U.S. Code §1 et seq.) as amended (“CEA”). This Agreement and the Transaction hereunder are subject to individual negotiation by the parties. Neither this Agreement nor the Transaction hereunder has been executed or traded on a “trading facility” as defined in Section 1a(33) of the CEA.

 

(i)                                    Accuracy of Specified Information.  Section 3(d) is hereby amended by adding in the third line thereof after the word “respect” and before the period the words “or, in the case of audited or unaudited financial statements or balance sheets, a fair representation of the financial condition of the relevant person.”

 

[Signatures follow on separate page]

 

8



 

IN WITNESS WHEREOF the parties have executed this Schedule to the ISDA Master Agreement on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

 

CITIBANK, N.A.

 

 

 

 

 

By:

/s/ Linda Cook

 

 

Name:

Linda Cook

 

 

Title:

Vice President

 

 

Date:

 

 

 

 

 

 

 

WILMINGTON TRUST COMPANY

 

in its capacity as Subordination Agent on behalf of the Trustee under the Class C Trust Agreement.

 

 

 

 

 

By:

/s/ Kathleen A. Pedelini

 

 

Name:

Kathleen A. Pedelini

 

 

Title:

Financial Services Officer

 

 

Date:

 

 

 


EX-4.18 20 a04-11378_4ex4d18.htm EX-4.18

Exhibit 4.18

 

Date:

November 15, 2004

 

 

To:

Wilmington Trust Company

 

 

From:

Citibank, N.A.

 

 

Subject:

CLASS G – 1 ABOVE CAP LIQUIDITY FACILITY CONFIRMATION

 

Reference Number:

 

Ladies and Gentlemen:

 

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Interest Rate Cap Transaction entered into on the Trade Date referred to in Paragraph 2 below (the “Transaction”) between Citibank, N.A. (“Party A”) and Wilmington Trust Company in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation, with respect to the JetBlue Airways Pass Through Trust, Series 2004–2G–1–O (“Party B”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 

1.                                       The definitions and provisions contained in the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (as so supplemented, the “Definitions”) are incorporated into this Confirmation.  In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.  References herein to a “Transaction” shall be deemed to be references to a “Swap Transaction” for the purposes of the Definitions.

 

This Confirmation supplements, forms a part of, and is subject to the 1992 ISDA Master Agreement (Multicurrency – Cross Border) including the Schedule thereto, dated as of November 15, 2004 as amended and supplemented from time to time (collectively, the “Agreement”), between us.  All provisions contained in the Agreement govern this Confirmation except as modified below.  In the event of any inconsistency between the Agreement and this Confirmation, this Confirmation will govern.  Capitalized terms not otherwise defined in the Agreement or this Confirmation shall have the meanings ascribed to them in the Intercreditor Agreement dated as of November 15, 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent (the “Intercreditor Agreement”). The Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

Each of Party A and Party B represents to the other that it has entered into this Transaction in reliance upon such independent accounting, regulatory, legal, tax and financial advice as it deems necessary and not upon any view expressed by the other.

 

1



 

2.                                       Party A and Party B by this Confirmation are entering into a Transaction (the “Above Cap Liquidity Facility”) that provides an irrevocable interest rate cap.  The terms of the Above Cap Liquidity Facility are as follows:

 

General Terms:

 

 

 

Transaction Type:

Interest Rate Cap Transaction

 

 

Notional Amount:

The Pool Balance for the Class G-1 Certificates from time to time. The Notional Amount as of any Floating Rate Payer Payment Date shall be determined before giving effect to any distributions on such Class G-1 Certificates on such Floating Rate Payer Payment Date.

 

 

Trade Date:

November 10, 2004

 

 

Effective Date:

November 15, 2004

 

 

Termination Date:

The first Business Day following the earlier of (i) February 15, 2018 and (ii) the date on which payment in full of Final Distributions with respect to the Class G-1 Certificates has been made.

 

 

Currency Unit:

USD

 

 

Business Day/Local Business Day:

“Business Day” as defined in the Intercreditor Agreement for all purposes under the Agreement.

 

 

Business Day Convention:

Following

 

 

Fixed Amounts:

 

 

 

Fixed Amount Payer:

Party B

 

 

Fixed Amount Payer Payment Date:

Effective Date

 

 

Fixed Amount:

As set forth in a separate letter agreement between Party A and Party B.

 

 

Floating Amounts:

 

 

 

Floating Rate Payer:

Party A

 

 

Floating Amount:

On each Floating Rate Payer Payment Date on which (i) the Floating Rate Option exceeds the Cap Rate and (ii) a Drawing Event (as defined below) has occurred, the Floating Amount shall be calculated as follows:

 

 

 

In the event that either (a) the Available Amount under the Primary Liquidity Facility (before giving effect to any Interest Drawing to be made on such Payment Date) is greater than zero

 

2



 

 

or (b) the amount on deposit in the Primary Cash Collateral Account (before giving effect to any withdrawals to be made from such account on such Payment Date) is greater than zero, the Floating Amount shall equal the Above-Cap Payment for such date. 

 

 

 

In the event that both statements in clauses (a) and (b) above are not true, then the Floating Amount shall equal zero.

 

 

Period End Dates:

Each February 15, May 15, August 15 and November 15, commencing on February 15, 2005 and ending on the Termination Date, subject to adjustment in accordance with the Following Business Day Convention.

 

 

Floating Rate Payer Payment Dates:

Each day that is a Period End Date and any Special Distribution Date not coinciding with a Period End Date on which a distribution of interest is, by the terms of the Intercreditor Agreement, to be made on the Class G-1 Certificates.

 

 

Floating Rate Option:

USD-LIBOR-BBA; provided that, if the relevant rate does not appear on the Telerate Page 3750, the rate shall be “Three-Month LIBOR” as determined by the Loan Trustee in accordance with the definition of “Three-Month LIBOR” in Annex A to the Indentures; and provided further that the Floating Rate Option shall be deemed to equal the Cap Rate during such period as the Stated Interest Rate applicable to the Class G-1 Certificates is subject to the Capped Interest Rate pursuant to the proviso in the definition of “Stated Interest Rate” in the Intercreditor Agreement.

 

 

Cap Rate:

7%

 

 

Designated Maturity:

3-Month

 

 

Spread:

None

 

 

Floating Rate Day Count Fraction:

Actual/360

 

 

Reset Dates:

The first day of the relevant Calculation Period.

 

 

Compounding:

Inapplicable

 

 

Notice:

Party B shall, on or before 1:00 p.m. (New York time) on each Floating Rate Payer Payment Date, provide Party A with notice of the then-current Pool Balance of the Class G-1 Certificates and the Floating Amount payable, if any, together with, if such Floating Amount is payable, the certification referred to in the final sentence of Section 3.6(a) of the Intercreditor Agreement.

 

3



 

3.                                       Role of Party A; Role of Calculation Agent

 

(i)                                     Party B acknowledges that: (a) in connection with this Transaction and this Agreement, Party A has acted in the capacity of an arm’s-length contractual counterparty and not as its financial advisor or fiduciary; and (b) in exercising its rights or performing any of its duties under this Agreement, Party A will act as principal and not as a fiduciary of Party B.

 

(ii)                                  Whenever the Calculation Agent is required to act or exercise judgment in any way, it will do so in good faith and in a commercially reasonable manner.  The calculations and determinations of the Calculation Agent shall be made in accordance with terms of this Confirmation having regard in each case to the criteria stipulated herein.

 

4.                                       Additional Termination Event/Replacement of Above-Cap Liquidity Provider

 

It will be an Additional Termination Event with respect to Party A if the relevant credit rating of Citibank, N.A or any assignee issued by any Rating Agency at any time is lower than the applicable Threshold Rating (“Credit Downgrade”).  Party A shall be the sole Affected Party with respect to such Additional Termination Event.

 

In the event of a Credit Downgrade, Party A may, within ten days, at its own expense, arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for the Above-Cap Liquidity Facility. If Party A does not arrange for such replacement and if this Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 10th day (or if such 10th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of the Schedule to the Agreement.

 

5.                                       Additional Definitions

 

Drawing Event” shall mean an event on any Distribution Date where Party B, after giving effect to the subordination provisions of the Intercreditor Agreement and any Election Interest Payments made by the Policy Provider (but without regard to drawings under a Primary Liquidity Facility or withdrawals from the Cash Collateral Account or Above-Cap Account), shall not have sufficient funds for the payment of accrued interest due and owing on the Class G–1 Certificates other than any amount of interest due and payable on the Class G–1 Certificates on such Distribution Date that remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date.

 

Threshold Rating” shall mean, for purposes of this Agreement, the short-term unsecured debt rating of P-1 by Moody’s and short-term issuer credit rating of A-1 by Standard & Poor’s.

 

6.                                       Payments

 

Party A hereby irrevocably instructs Party B to make any payment due to Party A directly to the account specified below in the name of Party A. Party B hereby irrevocably instructs Party A to make any payments of Floating Amounts and any Termination Amount due to Party B directly to the account(s) specified below in the name of Party B.  All payments by Party A of Floating Amounts and any Termination Amount due to Party B shall be made prior to 4:00 p.m. (New York City time) on the date such payment is due without setoff, deduction, withholding, netting, or any other reduction.

 

4



 

7.                                       Account Details

 

Payments to Party A:          CITIBANK, N.A., NEW YORK

ABA: 021-000-089

BIC: CITIUS33

A/C #: 00167679

A/C NAME: FINANCIAL FUTURES

 

Payments to Party B:                                 Wilmington Trust Company

ABA#: 031 1000 92

Account#:

Reference: JetBlue 2004-2 G-1

 

8.                                       Offices

 

The Office of Party A for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.  The Office of Party B for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.

 

9.                                       Counterparts

 

This Confirmation may be executed in any number of counterparts and by each party hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Confirmation.

 

[Signatures follow on separate page]

 

5



 

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.

 

 

Yours sincerely,

 

 

 

CITIBANK, N.A.

 

 

 

By:

/s/ Frank A. Licciardello

 

 

 

 

 

 

Name:

Frank A. Licciardello

 

 

 

 

 

 

Title:

Authorized Signatory

 

 

 

Confirmed as of the date first written above:

 

WILMINGTON TRUST COMPANY

in its capacity as Subordination Agent on behalf

of the Trustee under the Class G–1 Trust Agreement

 

By:

/s/ Kathleen A. Pedelini

 

 

 

 

Name:

Kathleen A. Pedelini

 

 

 

 

Title

Financial Services Officer

 

 

6


EX-4.19 21 a04-11378_4ex4d19.htm EX-4.19

Exhibit 4.19

 

Date:

November 15, 2004

 

 

To:

Wilmington Trust Company

 

 

From:

Citibank, N.A.

 

 

Subject:

CLASS G – 2 ABOVE CAP LIQUIDITY FACILITY CONFIRMATION

 

Reference Number:

 

Ladies and Gentlemen:

 

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Interest Rate Cap Transaction entered into on the Trade Date referred to in Paragraph 2 below (the “Transaction”) between Citibank, N.A. (“Party A”) and Wilmington Trust Company in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation, with respect to the JetBlue Airways Pass Through Trust, Series 2004–2G–2–O (“Party B”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 

1.                                       The definitions and provisions contained in the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (as so supplemented, the “Definitions”) are incorporated into this Confirmation.  In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.  References herein to a “Transaction” shall be deemed to be references to a “Swap Transaction” for the purposes of the Definitions.

 

This Confirmation supplements, forms a part of, and is subject to the 1992 ISDA Master Agreement (Multicurrency – Cross Border) including the Schedule thereto, dated as of November 15, 2004 as amended and supplemented from time to time (collectively, the “Agreement”), between us.  All provisions contained in the Agreement govern this Confirmation except as modified below.  In the event of any inconsistency between the Agreement and this Confirmation, this Confirmation will govern.  Capitalized terms not otherwise defined in the Agreement or this Confirmation shall have the meanings ascribed to them in the Intercreditor Agreement dated as of November 15, 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent (the “Intercreditor Agreement”). The Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

Each of Party A and Party B represents to the other that it has entered into this Transaction in reliance upon such independent accounting, regulatory, legal, tax and financial advice as it deems necessary and not upon any view expressed by the other.

 

1



 

2.                                       Party A and Party B by this Confirmation are entering into a Transaction (the “Above Cap Liquidity Facility”) that provides an irrevocable interest rate cap.  The terms of the Above Cap Liquidity Facility are as follows:

 

General Terms:

 

 

 

Transaction Type:

Interest Rate Cap Transaction

 

 

Notional Amount:

The Pool Balance for the Class G-2 Certificates from time to time. The Notional Amount as of any Floating Rate Payer Payment Date shall be determined before giving effect to any distributions on such Class G-2 Certificates on such Floating Rate Payer Payment Date.

 

 

Trade Date:

November 10, 2004

 

 

Effective Date:

November 15, 2004

 

 

Termination Date:

The first Business Day following the earlier of (i) May 15, 2018 and (ii) the date on which payment in full of Final Distributions with respect to the Class G-2 Certificates has been made.

 

 

Currency Unit:

USD

 

 

Business Day/Local Business Day:

“Business Day” as defined in the Intercreditor Agreement for all purposes under the Agreement.

 

 

Business Day Convention:

Following

 

 

Fixed Amounts:

 

 

 

Fixed Amount Payer:

Party B

 

 

Fixed Amount Payer Payment Date:

Effective Date

 

 

Fixed Amount:

As set forth in a separate letter agreement between Party A and Party B.

 

 

Floating Amounts:

 

 

 

Floating Rate Payer:

Party A

 

 

Floating Amount:

On each Floating Rate Payer Payment Date on which (i) the Floating Rate Option exceeds the Cap Rate and (ii) a Drawing Event (as defined below) has occurred, the Floating Amount shall be calculated as follows:

 

 

 

In the event that either (a) the Available Amount under the Primary Liquidity Facility (before giving effect to any Interest Drawing to be made on such Payment Date) is greater than zero or (b) the amount on deposit in the Primary Cash Collateral

 

2



 

 

Account (before giving effect to any withdrawals to be made from such account on such Payment Date) is greater than zero, the Floating Amount shall equal the Above-Cap Payment for such date. 

 

 

 

In the event that both statements in clauses (a) and (b) above are not true, then the Floating Amount shall equal zero.

 

 

Period End Dates:

Each February 15, May 15, August 15 and November 15, commencing on February 15, 2005 and ending on the Termination Date, subject to adjustment in accordance with the Following Business Day Convention.

 

 

Floating Rate Payer Payment Dates:

Each day that is a Period End Date and any Special Distribution Date not coinciding with a Period End Date on which a distribution of interest is, by the terms of the Intercreditor Agreement, to be made on the Class G-2 Certificates.

 

 

Floating Rate Option:

USD-LIBOR-BBA; provided that, if the relevant rate does not appear on the Telerate Page 3750, the rate shall be “Three-Month LIBOR” as determined by the Loan Trustee in accordance with the definition of “Three-Month LIBOR” in Annex A to the Indentures; and provided further that the Floating Rate Option shall be deemed to equal the Cap Rate during such period as the Stated Interest Rate applicable to the Class G-2 Certificates is subject to the Capped Interest Rate pursuant to the proviso in the definition of “Stated Interest Rate” in the Intercreditor Agreement.

 

 

Cap Rate:

7%

 

 

Designated Maturity:

3-Month

 

 

Spread:

None

 

 

Floating Rate Day Count Fraction:

Actual/360

 

 

Reset Dates:

The first day of the relevant Calculation Period.

 

 

Compounding:

Inapplicable

 

 

Notice:

Party B shall, on or before 1:00 p.m. (New York time) on each Floating Rate Payer Payment Date, provide Party A with notice of the then-current Pool Balance of the Class G-2 Certificates and the Floating Amount payable, if any, together with, if such Floating Amount is payable, the certification referred to in the final sentence of Section 3.6(a) of the Intercreditor Agreement.

 

3



 

3.                                       Role of Party A; Role of Calculation Agent

 

(i)                                     Party B acknowledges that: (a) in connection with this Transaction and this Agreement, Party A has acted in the capacity of an arm’s-length contractual counterparty and not as its financial advisor or fiduciary; and (b) in exercising its rights or performing any of its duties under this Agreement, Party A will act as principal and not as a fiduciary of Party B.

 

(ii)                                  Whenever the Calculation Agent is required to act or exercise judgment in any way, it will do so in good faith and in a commercially reasonable manner.  The calculations and determinations of the Calculation Agent shall be made in accordance with terms of this Confirmation having regard in each case to the criteria stipulated herein.

 

4.                                       Additional Termination Event/Replacement of Above-Cap Liquidity Provider

 

It will be an Additional Termination Event with respect to Party A if the relevant credit rating of Citibank, N.A or any assignee issued by any Rating Agency at any time is lower than the applicable Threshold Rating (“Credit Downgrade”).  Party A shall be the sole Affected Party with respect to such Additional Termination Event.

 

In the event of a Credit Downgrade, Party A may, within ten days, at its own expense, arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for the Above-Cap Liquidity Facility. If Party A does not arrange for such replacement and if this Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 10th day (or if such 10th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of the Schedule to the Agreement.

 

5.                                       Additional Definitions

 

Drawing Event” shall mean an event on any Distribution Date where Party B, after giving effect to the subordination provisions of the Intercreditor Agreement and any Election Interest Payments made by the Policy Provider (but without regard to drawings under a Primary Liquidity Facility or withdrawals from the Cash Collateral Account or Above-Cap Account), shall not have sufficient funds for the payment of accrued interest due and owing on the Class G–2 Certificates other than any amount of interest due and payable on the Class G–2 Certificates on such Distribution Date that remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date.

 

Threshold Rating” shall mean, for purposes of this Agreement, the short-term unsecured debt rating of P-1 by Moody’s and short-term issuer credit rating of A-1 by Standard & Poor’s.

 

6.                                       Payments

 

Party A hereby irrevocably instructs Party B to make any payment due to Party A directly to the account specified below in the name of Party A. Party B hereby irrevocably instructs Party A to make any payments of Floating Amounts and any Termination Amount due to Party B directly to the account(s) specified below in the name of Party B.  All payments by Party A of Floating Amounts and any Termination Amount due to Party B shall be made prior to 4:00 p.m. (New York City time) on the date such payment is due without setoff, deduction, withholding, netting, or any other reduction.

 

4



 

7.                                       Account Details

 

Payments to Party A:                               CITIBANK, N.A., NEW YORK

ABA: 021-000-089

BIC: CITIUS33

A/C #: 00167679

A/C NAME: FINANCIAL FUTURES

 

Payments to Party B:                                 Wilmington Trust Company

ABA#: 031 1000 92

Account#:

Reference: JetBlue 2004-2 G-2

 

8.                                       Offices

 

The Office of Party A for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.  The Office of Party B for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.

 

9.                                       Counterparts

 

This Confirmation may be executed in any number of counterparts and by each party hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Confirmation.

 

[Signatures follow on separate page]

 

5



 

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.

 

 

Yours sincerely,

 

 

 

CITIBANK, N.A.

 

 

 

By:

/s/ Frank A. Licciardello

 

 

 

 

 

 

Name:

Frank A. Licciardello

 

 

 

 

 

 

Title:

Authorized Signatory

 

 

 

Confirmed as of the date first written above:

 

WILMINGTON TRUST COMPANY

in its capacity as Subordination Agent on behalf
of the Trustee under the Class G–2 Trust Agreement

 

By:

/s/ Kathleen A. Pedelini

 

 

 

 

Name:

Kathleen A. Pedelini

 

 

 

 

Title

Financial Services Officer

 

 

6


EX-4.20 22 a04-11378_4ex4d20.htm EX-4.20

Exhibit 4.20

 

Date:

November 15, 2004

 

 

To:

Wilmington Trust Company

 

 

From:

Citibank, N.A.

 

 

Subject:

CLASS C ABOVE CAP LIQUIDITY FACILITY CONFIRMATION

 

Reference Number:

 

Ladies and Gentlemen:

 

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Interest Rate Cap Transaction entered into on the Trade Date referred to in Paragraph 2 below (the “Transaction”) between Citibank, N.A. (“Party A”) and Wilmington Trust Company in its capacity as Subordination Agent on behalf of the Trustee under the Pass Through Trust Agreement dated as of the date hereof between Wilmington Trust Company and JetBlue Airways Corporation, with respect to the JetBlue Airways Pass Through Trust, Series 2004–2C–O (“Party B”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.

 

1.                                       The definitions and provisions contained in the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the International Swaps and Derivatives Association, Inc. (as so supplemented, the “Definitions”) are incorporated into this Confirmation.  In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.  References herein to a “Transaction” shall be deemed to be references to a “Swap Transaction” for the purposes of the Definitions.

 

This Confirmation supplements, forms a part of, and is subject to the 1992 ISDA Master Agreement (Multicurrency – Cross Border) including the Schedule thereto, dated as of November 15, 2004 as amended and supplemented from time to time (collectively, the “Agreement”), between us.  All provisions contained in the Agreement govern this Confirmation except as modified below.  In the event of any inconsistency between the Agreement and this Confirmation, this Confirmation will govern.  Capitalized terms not otherwise defined in the Agreement or this Confirmation shall have the meanings ascribed to them in the Intercreditor Agreement dated as of November 15, 2004 among Wilmington Trust Company, as Trustee under the JetBlue Airways Pass Through Trust 2004–2G–1, JetBlue Airways Pass Through Trust 2004–2G–2 and JetBlue Airways Pass Through Trust 2004–2C, Landesbank Baden-Württemberg, as Class G–1 Primary Liquidity Provider, Class G–2 Primary Liquidity Provider and Class C Primary Liquidity Provider, Citibank, N.A. as Class G–1 Above-Cap Liquidity Provider, Class G–2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent (the “Intercreditor Agreement”). The Agreement and each Confirmation will be governed by and construed in accordance with the laws of the State of New York.

 

Each of Party A and Party B represents to the other that it has entered into this Transaction in reliance upon such independent accounting, regulatory, legal, tax and financial advice as it deems necessary and not upon any view expressed by the other.

 

1



 

2.                                       Party A and Party B by this Confirmation are entering into a Transaction (the “Above Cap Liquidity Facility”) that provides an irrevocable interest rate cap.  The terms of the Above Cap Liquidity Facility are as follows:

 

General Terms:

 

 

 

Transaction Type:

Interest Rate Cap Transaction

 

 

Notional Amount:

The Preferred Pool Balance for the Class C Certificates from time to time. The Notional Amount as of any Floating Rate Payer Payment Date shall be determined before giving effect to any distributions on such Class C Certificates on such Floating Rate Payer Payment Date.

 

 

Trade Date:

November 10, 2004

 

 

Effective Date:

November 15, 2004

 

 

Termination Date:

The first Business Day following the earlier of (i) May 15, 2010 and (ii) the date on which payment in full of Final Distributions with respect to the Class C Certificates has been made.

 

 

Currency Unit:

USD

 

 

Business Day/Local Business Day:

“Business Day” as defined in the Intercreditor Agreement for all purposes under the Agreement.

 

 

Business Day Convention:

Following

 

 

Fixed Amounts:

 

 

 

Fixed Amount Payer:

Party B

 

 

Fixed Amount Payer Payment Date:

Effective Date

 

 

Fixed Amount:

As set forth in a separate letter agreement between Party A and Party B.

 

 

Floating Amounts:

 

 

 

Floating Rate Payer:

Party A

 

 

Floating Amount:

On each Floating Rate Payer Payment Date on which (i) the Floating Rate Option exceeds the Cap Rate and (ii) a Drawing Event (as defined below) has occurred, the Floating Amount shall be calculated as follows:

 

 

 

In the event that either (a) the Available Amount under the Primary Liquidity Facility (before giving effect to any Interest Drawing to be made on such Payment Date) is greater than zero or (b) the amount on deposit in the Primary Cash Collateral

 

2



 

 

Account (before giving effect to any withdrawals to be made from such account on such Payment Date) is greater than zero, the Floating Amount shall equal the Above-Cap Payment for such date.

 

 

 

In the event that both statements in clauses (a) and (b) above are not true, then the Floating Amount shall equal zero.

 

 

Period End Dates:

Each February 15, May 15, August 15 and November 15, commencing on February 15, 2005 and ending on the Termination Date, subject to adjustment in accordance with the Following Business Day Convention.

 

 

Floating Rate Payer Payment Dates:

Each day that is a Period End Date and any Special Distribution Date not coinciding with a Period End Date on which a distribution of Adjusted Interest is, by the terms of the Intercreditor Agreement, to be made on the Class C Certificates.

 

 

Floating Rate Option:

USD-LIBOR-BBA; provided that, if the relevant rate does not appear on the Telerate Page 3750, the rate shall be “Three-Month LIBOR” as determined by the Loan Trustee in accordance with the definition of “Three-Month LIBOR” in Annex A to the Indentures; and provided further that the Floating Rate Option shall be deemed to equal the Cap Rate during such period as the Stated Interest Rate applicable to the Class C Certificates is subject to the Capped Interest Rate pursuant to the proviso in the definition of “Stated Interest Rate” in the Intercreditor Agreement.

 

 

Cap Rate:

7%

 

 

Designated Maturity:

3-Month

 

 

Spread:

None

 

 

Floating Rate Day Count Fraction:

Actual/360

 

 

Reset Dates:

The first day of the relevant Calculation Period.

 

 

Compounding:

Inapplicable

 

 

Notice:

Party B shall, on or before 1:00 p.m. (New York time) on each Floating Rate Payer Payment Date, provide Party A with notice of the then-current Preferred C Pool Balance of the Class C Certificates and the Floating Amount payable, if any, together with, if such Floating Amount is payable, the certification referred to in the final sentence of Section 3.6(a) of the Intercreditor Agreement.

 

3



 

3.                                       Role of Party A; Role of Calculation Agent

 

(i)                                     Party B acknowledges that: (a) in connection with this Transaction and this Agreement, Party A has acted in the capacity of an arm’s-length contractual counterparty and not as its financial advisor or fiduciary; and (b) in exercising its rights or performing any of its duties under this Agreement, Party A will act as principal and not as a fiduciary of Party B.

 

(ii)                                  Whenever the Calculation Agent is required to act or exercise judgment in any way, it will do so in good faith and in a commercially reasonable manner.  The calculations and determinations of the Calculation Agent shall be made in accordance with terms of this Confirmation having regard in each case to the criteria stipulated herein.

 

4.                                       Additional Termination Event/Replacement of Above-Cap Liquidity Provider

 

It will be an Additional Termination Event with respect to Party A if the relevant credit rating of Citibank, N.A or any assignee issued by any Rating Agency at any time is lower than the applicable Threshold Rating (“Credit Downgrade”).  Party A shall be the sole Affected Party with respect to such Additional Termination Event.

 

In the event of a Credit Downgrade, Party A may, within ten days, at its own expense, arrange for one or more Replacement Above-Cap Liquidity Providers to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility for the Above-Cap Liquidity Facility. If Party A does not arrange for such replacement and if this Above-Cap Liquidity Facility has not otherwise been replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways Corporation) in accordance with the terms of Section 3.6(c)(ii) of the Intercreditor Agreement, such 10th day (or if such 10th day is not a Business Day, the next succeeding Business Day) shall be deemed to be an “Early Termination Date” and Party A shall make a termination payment to Party B in accordance with Part 1(j) of the Schedule to the Agreement.

 

5.                                       Additional Definitions

 

Drawing Event” shall mean an event on any Distribution Date where Party B, after giving effect to the subordination provisions of the Intercreditor Agreement and any Election Interest Payments made by the Policy Provider (but without regard to drawings under a Primary Liquidity Facility or withdrawals from the Cash Collateral Account or Above-Cap Account), shall not have sufficient funds for the payment of accrued Adjusted Interest due and owing on the Class C Certificates other than any amount of interest due and payable on the Class C Certificates on such Distribution Date that remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date.

 

Threshold Rating” shall mean, for purposes of this Agreement, the short-term unsecured debt rating of P-1 by Moody’s and short-term issuer credit rating of A-1 by Standard & Poor’s.

 

6.                                       Payments

 

Party A hereby irrevocably instructs Party B to make any payment due to Party A directly to the account specified below in the name of Party A. Party B hereby irrevocably instructs Party A to make any payments of Floating Amounts and any Termination Amount due to Party B directly to the account(s) specified below in the name of Party B.  All payments by Party A of Floating Amounts and any Termination Amount due to Party B shall be made prior to 4:00 p.m. (New York City time) on the date such payment is due without setoff, deduction, withholding, netting, or any other reduction.

 

4



 

7.                                       Account Details

 

Payments to Party A:                               CITIBANK, N.A., NEW YORK

ABA: 021-000-089

BIC: CITIUS33

A/C #: 00167679

A/C NAME: FINANCIAL FUTURES

 

Payments to Party B:                                 Wilmington Trust Company

ABA#: 031 1000 92

Account#:

Reference: JetBlue 2004-2 C

 

8.                                       Offices

 

The Office of Party A for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.  The Office of Party B for the Transaction is its office at the address specified for notices to it in the Schedule to the Agreement.

 

9.                                       Counterparts

 

This Confirmation may be executed in any number of counterparts and by each party hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Confirmation.

 

[Signatures follow on separate page]

 

5



 

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.

 

 

Yours sincerely,

 

 

 

CITIBANK, N.A.

 

 

 

By:

/s/ Frank A. Licciardello

 

 

 

 

 

 

Name:

Frank A. Licciardello

 

 

 

 

 

 

Title:

Authorized Signatory

 

 

 

Confirmed as of the date first written above:

 

WILMINGTON TRUST COMPANY

in its capacity as Subordination Agent on behalf
of the Trustee under the Class C Trust Agreement

 

By:

/s/ Kathleen A. Pedelini

 

 

 

 

Name:

Kathleen A. Pedelini

 

 

 

 

Title

Financial Services Officer

 

 

6


EX-4.21 23 a04-11378_4ex4d21.htm EX-4.21

Exhibit 4.21

 

Execution Version

 

 

 

MBIA INSURANCE CORPORATION,
as Policy Provider,

 

JETBLUE AIRWAYS CORPORATION

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Subordination Agent
and

 

WILMINGTON TRUST COMPANY, as Trustee
under the
JETBLUE AIRWAYS PASS THROUGH TRUST 2004-2G-1
and
JETBLUE AIRWAYS PASS THROUGH TRUST 2004-2G-2

 

 

INSURANCE AND INDEMNITY AGREEMENT

 

 

JETBLUE AIRWAYS CORPORATION

 

JETBLUE AIRWAYS PASS THROUGH CERTIFICATES, SERIES 2004-2G-1
and
JETBLUE AIRWAYS PASS THROUGH CERTIFICATES, SERIES 2004-2G-2

 

Dated as of November 15, 2004

 

 

 



 

(This Table of Contents is for convenience of reference only and shall not be deemed to be part of this Insurance Agreement.  All capitalized terms used in this Insurance Agreement and not otherwise defined shall have the meanings set forth in Article I of this Insurance Agreement.)

 

TABLE OF CONTENTS

 

ARTICLE I

 

 

 

DEFINITIONS

 

 

 

Section 1.01

Defined Terms

 

Section 1.02

Other Definitional Provisions

 

 

 

 

ARTICLE II

 

 

 

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

 

 

Section 2.01

Representations and Warranties of JetBlue

 

Section 2.02

Covenants of JetBlue

 

Section 2.03

Covenants of the Class G Trustees and Subordination Agent

 

Section 2.04

Representations, Warranties and Covenants of the Policy Provider

 

 

 

 

ARTICLE III

 

 

 

THE POLICIES; REIMBURSEMENT; INDEMNIFICATION

 

 

 

Section 3.01

Issuance of the Policies

 

Section 3.02

Payment of Fees and Premium

 

Section 3.03

Reimbursement Obligation

 

Section 3.04

Indemnification

 

Section 3.05

Procedure for Payment of Fees and Premium

 

Section 3.06

Policy Endorsement

 

Section 3.07

Payment by Subordination Agent

 

 

 

 

ARTICLE IV

 

 

 

FURTHER AGREEMENTS

 

 

 

Section 4.01

Effective Date; Term of the Insurance Agreement

 

Section 4.02

Further Assurances and Corrective Instruments

 

Section 4.03

Obligations Absolute

 

Section 4.04

Assignments; Reinsurance; Third-Party Rights

 

Section 4.05

Liability of the Policy Provider

 

 

i




 

INSURANCE AND INDEMNITY AGREEMENT (as may be amended, modified or supplemented from time to time, this “Insurance Agreement”), dated as of November 15, 2004 (the “Closing Date”), by and among MBIA INSURANCE CORPORATION, as Policy Provider, JETBLUE AIRWAYS CORPORATION (“JetBlue”), WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Subordination Agent (the “Subordination Agent”), and WILMINGTON TRUST COMPANY, as Class G-1 Trustee (the “Class G-1 Trustee”) and Class G-2 Trustee (the “Class G-2 Trustee” and, collectively with the Class G-1 Trustee, the “Class G Trustees” and each a “Class G Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, JetBlue intends to finance (or refinance) the acquisition of fifteen Aircraft through separate secured loan Transactions in which JetBlue will own the Aircraft;

 

WHEREAS, on the date of the financing or refinancing of an Aircraft, JetBlue will issue pursuant to an Indenture, on a recourse basis, three series of Equipment Notes to finance or refinance a portion of the purchase price of such Aircraft;

 

WHEREAS, each Trustee under each of the Trust Agreements, will create the Trusts, which will acquire the Equipment Notes;

 

WHEREAS, (i) Landesbank Baden-Württemberg, as Primary Liquidity Provider, has entered into three Primary Liquidity Facilities, one for the benefit of the Class G-1 Certificateholders, one for the benefit of the Class G-2 Certificateholders and one for the benefit of the Class C Certificateholders, with the Subordination Agent, as agent for each Trustee on behalf of each Trust, (ii) Citibank, N.A., as Above-Cap Liquidity Provider, has entered into three separate confirmations to the ISDA Master Agreement, one for the benefit of the Class G-1 Certificateholders, one for the Benefit of the Class G-2 Certificateholders, and one for the benefit of the Class C Certificateholders, with the Subordination Agent, as agent for each Trustee on behalf of each Trust, and (iii) the Trustee of each Trust, the Primary Liquidity Provider, the Above-Cap Liquidity Provider, the Policy Provider and the Subordination Agent have entered into the Intercreditor Agreement;

 

WHEREAS, pursuant to each Trust Agreement, a separate Trust has been created to facilitate the sale of the Certificates;

 

WHEREAS, the Policy Provider has issued two separate Policies, one in respect of the Class G-1 Certificates and one in respect of the Class G-2 Certificates, pursuant to which it has agreed to guarantee the payment of interest to the Subordination Agent for the benefit of the applicable Class G Trustee and the applicable Class G Certificateholders and the payment of principal of the applicable Class G Certificates on the Final Distribution Date for each Class of Class G Certificates and as otherwise provided therein; and

 

WHEREAS, each of JetBlue, the Class G Trustees and the Subordination Agent has agreed to undertake certain obligations in consideration for the Policy Provider’s issuance of the Policies;

 



 

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

 

ARTICLE I

DEFINITIONS

 

Section 1.01     Defined Terms.  Unless the context clearly requires otherwise, all capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Intercreditor Agreement or, if not defined therein, in the Policies described below.  For purposes of this Insurance Agreement, the following terms shall have the following meanings:

 

Act” means Part A of subtitle VII of title 49, United States Code.

 

Aircraft” means any aircraft which is or will be part of the Collateral.

 

Airframe” means any airframe which is or will be part of the Collateral.

 

Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq.

 

Base Rate” means the fluctuating rate of interest as published from time to time in the New York, New York edition of The Wall Street Journal, under the caption “Money Rates” as the “prime rate,” the Base Rate to change when and as such published prime rate changes.

 

Citizen of the United States” is defined in Section 40102(a)(15) of the Act and in the FAA Regulations.

 

Class G Certificateholders” means either of the Class G-1 Certificateholders or Class G-2 Certificateholders, as applicable.

 

Class G Certificates” means either of the Class G-1 Certificates or Class G-2 Certificates, as applicable.

 

Class G Trust” means either of the Class G-1 Trust or Class G-2 Trust, as applicable.

 

Class G Trust Agreement” means either of the Class G-1 Trust Agreement or the Class G-2 Trust Agreement, as applicable.

 

Class G-1 Certificates” has the meaning given such term in the related Policy.

 

Class G-1 Certificateholder” has the meaning given such term in the related Policy.

 

Class G-1 Trust” has the meaning given such term in the related Policy.

 

2



 

Class G-2 Certificates” has the meaning given such term in the related Policy.

 

Class G-2 Certificateholder” has the meaning given such term in the related Policy.

 

Class G-2 Trust” has the meaning given such term in the related Policy.

 

Collateral” means the “Collateral” as defined in any Indenture with respect to an Aircraft.

 

Delivery Date” means with respect to each Participation Agreement, the “Closing Date” as defined or to be defined in such Participation Agreement.

 

Engine” means any engine which is or will be part of the Collateral.

 

Expenses” means any and all liabilities, obligations, losses (other than losses from non-reimbursement of amounts paid by the Policy Provider under each Policy), damages, settlements, penalties, claims, actions, suits, costs, out of pocket expenses and disbursements (including, without limitation, reasonable fees and disbursements of legal counsel, accountants, appraisers, inspectors or other professionals, and costs of investigation).

 

Event of Loss” means, with respect to an Aircraft, any Event of Loss defined or to be defined in the Indenture related to such Aircraft.

 

FAA” means the Federal Aviation Administration of the United States of America or any Government Entity succeeding to the functions of such Federal Aviation Administration.

 

FAA Filed Documents” with respect to each Aircraft, has the meaning given such term in the related Participation Agreement.

 

Final Dissolution Date” means following the occurrence of a Triggering Event, the Distribution Date next succeeding the date of receipt by the Subordination Agent of the proceeds of the sale of the last Aircraft (or the related Equipment Notes) then subject to the Lien of any Indenture.

 

Final Distribution Date” means the date which is the earlier of the (i) Final Legal Distribution Date or (ii) Final Dissolution Date.

 

Final Legal Distribution Date” means (i) for the Class G-1 Certificates, the Regular Distribution Date in February 2018 and (ii) for the Class G-2 Certificates, the Regular Distribution Date in May 2018.

 

Financing Statements” means collectively, UCC-1 (and, where appropriate, UCC-3) financing statements covering in respect of each Aircraft, the related Collateral, executed (or otherwise authorized) by JetBlue, as debtor, showing Mortgagee as secured party, for filing in Delaware and each other jurisdiction in which such filing is made.

 

3



 

GAAP” means generally accepted accounting principles as set forth in the statements of financial accounting standards issued by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, as such principles may at any time or from time to time be varied by any applicable financial accounting rules or regulations issued by the SEC and, with respect to any Person, shall mean such principles applied on a basis consistent with prior periods except as may be disclosed in such Person’s financial statements.

 

Government Entity” means (a) any federal, state, provincial or similar government, and any body, board, department, commission, court, tribunal, authority, agency or other instrumentality of any such government or otherwise exercising any executive, legislative, judicial, administrative or regulatory functions of such government or (b) any other government entity having jurisdiction over any matter contemplated by the Operative Agreements or relating to the observance or performance of the obligations of any of the parties to the Operative Agreements.

 

Indemnification Agreement” means the Indemnification Agreement, dated as of November 9, 2004 among the Policy Provider, JetBlue and the Underwriters.

 

Insurance Agreement” has the meaning given such term in the initial paragraph hereof.

 

Intercreditor Agreement” means the Intercreditor Agreement, dated as the date hereof by and among Wilmington Trust Company, as Trustee under each Trust, the Primary Liquidity Provider, the Above-Cap Liquidity Provider, the Subordination Agent and the Policy Provider.

 

Investment Company Act” means the Investment Company Act of 1940, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

Lien” means any mortgage, pledge, lien, charge, encumbrance or security interest affecting the title to or any interest in property.

 

Material Adverse Change” means, in respect of any Person as at any date, a material adverse change in the ability of such Person to perform its obligations under any of the Operative Agreements to which it is a party as of such date, including any material adverse change in the business, financial condition, results of operations or properties of such Person on a consolidated basis with its subsidiaries which might have such effect.

 

Moody’s” means Moody’s Investors Service, Inc., and any successor thereto.

 

Mortgagee” with respect to each Aircraft means Wilmington Trust Company in its capacity as Loan Trustee under the related Indentures.

 

Offering Document” means the Prospectus Supplement dated November 9, 2004 together with the Prospectus dated November 4, 2004.

 

4



 

Operative Agreements” means this Insurance Agreement, each Policy, the Indemnification Agreement, the Intercreditor Agreement, each Participation Agreement, each Indenture, the Note Purchase Agreement, the Series G-1 Equipment Notes, the Series G-2 Equipment Notes, the Class G-1 Certificates, the Class G-2 Certificates, the Primary Liquidity Facilities for the Class G Certificates, the Above-Cap Liquidity Facilities for the Class G Certificates, the Escrow and Paying Agent Agreements relating to the Class G-1 Certificates and the Class G-2 Certificates, respectively, the Deposit Agreements relating to the Class G-1 Certificates and the Class G-2 Certificates, respectively, the Class G-1 Trust Agreement, the Class G-2 Trust Agreement and the Policy Fee Letter, together with all exhibits and schedules included with any of the foregoing.

 

Permitted Liens” has the meaning given to such term in the Indenture.

 

Person” means an individual, joint stock company, trust, unincorporated association, joint venture, corporation, business or owner trust, partnership or other organization or entity (whether governmental or private).

 

Policy” means (i) for the Class G-1 Certificates, the Financial Guaranty Insurance Policy No. 45243, together with all endorsements thereto, issued by the Policy Provider in favor of the Subordination Agent, for the benefit of the Class G-1 Certificateholders as each of the same may be amended from time to time in accordance with the terms of the Intercreditor Agreement and (ii) for the Class G-2 Certificates, the Financial Guaranty Insurance Policy No. 45256, together with all endorsements thereto, issued by the Policy Provider in favor of the Subordination Agent, for the benefit of the Class G-2 Certificateholders as each of the same may be amended from time to time in accordance with the terms of the Intercreditor Agreement.

 

Policy Fee Letter” means the fee letter, dated as of November 15, 2004 from the Policy Provider to JetBlue and the Subordination Agent setting forth the Premium (as defined therein) and certain other amounts payable in respect of the Policies.

 

Policy Provider” means MBIA Insurance Corporation, or any successor thereto, as issuer of each Policy.

 

Policy Provider Information” means the information set forth under the caption “Description of the Policy Provider” in the Offering Document including information set forth in the documents incorporated by reference therein.

 

S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

SEC” means the Securities and Exchange Commission of the United States of America, or any successor thereto.

 

Section 1110” means 11 U.S.C. § 1110 of the Bankruptcy Code or any successor or analogous section of the federal bankruptcy law in effect from time to time.

 

5



 

Securities Act” means the Securities Act of 1933, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

Security” means a “Security” as defined in Section 2(1) of the Securities Act.

 

Series G-1 Equipment Notes” means the floating rate Series G-1 Equipment Notes issued pursuant to any Indenture by JetBlue and authenticated by the Loan Trustee thereunder, and any Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

 

Series G-2 Equipment Notes” means the floating rate Series G-2 Equipment Notes issued pursuant to any Indenture by JetBlue and authenticated by the Loan Trustee thereunder, and any Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

 

Transactions” means the transactions contemplated by the Operative Agreements, including the transactions described in the Offering Document.

 

Trust Property” with respect to any Trust, has the meaning given in the Trust Agreement for such Trust.

 

UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.

 

Underwriting Agreement” means the Underwriting Agreement, dated November 9, 2004 among the Underwriters and JetBlue, relating to the purchase of the Certificates by the Underwriters, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

U.S. Air Carrier” means any United States air carrier that is a Citizen of the United States holding an air carrier operating certificate issued by the Secretary of Transportation pursuant to the Act for aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of cargo, and as to which there is in force an air carrier operating certificate issued pursuant to Part 121 of the FAA Regulations, or which may operate as an air carrier by certification or otherwise under any successor or substitute provisions therefor or in the absence thereof.

 

Section 1.02     Other Definitional Provisions.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Insurance Agreement shall refer to this Insurance Agreement as a whole and not to any particular provision of this Insurance Agreement, and Section, subsection, Schedule and Exhibit references are to this Insurance Agreement unless otherwise specified.  The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.  The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.”

 

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ARTICLE II

REPRESENTATIONS
, WARRANTIES AND COVENANTS

 

Section 2.01     Representations and Warranties of JetBlue.  JetBlue represents and warrants as of the Closing Date and as of each Delivery Date as follows:

 

(a)                                  Organization; Qualification.  JetBlue is a corporation duly incorporated, validly existing, in good standing under the laws of the State of Delaware and has the corporate power and authority to conduct its business in which it is currently engaged and to own or hold under lease its properties and to enter into and perform its obligations under the Operative Agreements to which it is a party as of such date.  JetBlue is duly qualified to do business as a foreign corporation in good standing in each jurisdiction in which the nature and extent of the business conducted by it, or the ownership of its properties, requires such qualification, except where the failure to be so qualified would not give rise to a Material Adverse Change to JetBlue.

 

(b)                                 Corporate Authorization.  JetBlue has taken, or caused to be taken, all necessary corporate action (including, without limitation, the obtaining of any consent or approval of stockholders required by its certificate of incorporation or by-laws) to authorize the execution and delivery of each of the Operative Agreements to which it is a party as of such date, and the performance of its obligations thereunder.

 

(c)                                  No Violation.  The execution and delivery by JetBlue of the Operative Agreements to which it is a party as of such date, the performance by JetBlue of its obligations thereunder and the consummation by JetBlue of the Transactions contemplated thereby, do not and will not (a) violate any provision of the certificate of incorporation or by-laws of JetBlue, (b) violate any law, regulation, rule or order applicable to or binding on JetBlue or (c) violate or constitute any default under (other than any violation or default that would not result in a Material Adverse Change to JetBlue), or result in the creation of any Lien (other than Permitted Liens) upon the Aircraft under, any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, loan or other material agreement, instrument or document to which JetBlue is a party or by which it or any of its properties is bound.

 

(d)                                 Approvals.  The execution and delivery by JetBlue of the Operative Agreements to which it is a party as of such date, the performance by JetBlue of its obligations thereunder and the consummation on such date by JetBlue of the Transactions contemplated thereby do not and will not require the consent or approval of, or the giving of notice to, or the registration with, or the recording or filing of any documents with, or the taking of any other action in respect of, (a) any trustee or other creditor of JetBlue and (b) any Government Entity, other than the filing of (w) the FAA Filed Documents and the Financing Statements (and continuation statements periodically), (x) filings, recordings, notices or other ministerial actions pursuant to any routine recording, contractual or regulatory requirements applicable to it, (y) filings, recordings, notices or other actions contemplated by the Operative Agreements in connection with the leasing, subleasing or re-registration of the Aircraft and (z) filings, recordings, notices or other actions all of which have either been, or will be, completed on or prior to such date and will be in full force and effect on such date.

 

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(e)                                  Valid and Binding Agreements.  The Operative Agreements executed and delivered by JetBlue on or prior to such date have been duly executed and delivered by JetBlue and, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, constitute the legal, valid and binding obligations of JetBlue and are enforceable against JetBlue in accordance with the respective terms thereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting the rights of creditors generally and general principles of equity, whether considered in a proceeding at law or in equity and subject to principles of public policy limiting the right to enforce the indemnification provisions contained herein, insofar as such provisions relate to indemnification for liabilities arising under federal securities laws.

 

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

 

(g)                                 Financial Condition.  The audited consolidated balance sheet of JetBlue with respect to JetBlue’s most recent fiscal year included in JetBlue’s most recent Annual Report on Form 10-K, as amended, filed by JetBlue with the SEC, and the related consolidated statements of operations and cash flows for the period then ended have been prepared in conformity with GAAP and present fairly in all material respects the financial condition of JetBlue and its consolidated subsidiaries as of such date and the results of its operations and cash flows for such period, and since the date of such balance sheet, there has been no Material Adverse Change in such financial condition or operations of JetBlue, except for matters disclosed in (a) the financial statements referred to above or (b) any subsequent Quarterly Report on Form 10-Q, Current Report on Form 8-K or any press release issued by JetBlue filed by JetBlue with the SEC on or prior to the Closing Date or such Delivery Date, as the case may be.

 

(h)                                 Registration and Recordation.  In respect of each Aircraft, except for (a) the registration of the Aircraft with the FAA pursuant to the Act in the name of JetBlue, (b) the filing for recordation (and recordation) of the FAA Filed Documents relating to such Aircraft, (c) the filing of the Financing Statements relating to such Aircraft (and continuation statements relating thereto at periodic intervals), and (d) the affixation of the nameplates referred to in Section 4.02(e) of the related Indenture with respect to such Aircraft, on the Delivery Date with respect to such Aircraft, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the UCC) is necessary in order to establish and perfect in respect of such Aircraft, the Mortgagee’s first priority perfected security interest in such Aircraft (subject only to Permitted Liens as defined in the related Indenture), as against JetBlue and any other Person, in each case, in any applicable jurisdictions in the United States.

 

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

 

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(j)                                     No Default.  On such Delivery Date, in respect of each Aircraft delivered on such date, no event which would constitute an Event of Default (as defined in the Indenture for such Aircraft) and no event or condition that with the giving of notice or the lapse of time or both would become an Event of Default has occurred and is continuing.

 

(k)                                  No Event of Loss.  With respect to such Delivery Date, no Event of Loss has occurred with respect to the Airframe or any Engine which is Collateral under each Indenture executed as of such Delivery Date, and to the actual knowledge of JetBlue, no circumstance, condition, act or event has occurred that, with the giving of notice or lapse of time or both gives rise to or constitutes an Event of Loss with respect to such Airframe or any such Engine.

 

(l)                                     Compliance with Laws.

 

(i)                                     JetBlue is a Citizen of the United States and a U.S. Air Carrier.

 

(ii)                                  JetBlue holds all licenses, permits and franchises from the appropriate Government Entities necessary to authorize JetBlue to lawfully engage in air transportation and to carry on scheduled commercial passenger service as currently conducted, except where the failure to so hold any such license, permit or franchise would not give rise to a Material Adverse Change to JetBlue.

 

(iii)                               JetBlue is not an “investment company” or a company controlled by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(m)                               Securities Laws.  Neither JetBlue nor any person authorized to act on its behalf has directly or indirectly offered any beneficial interest or Security relating to the ownership of the Aircraft or any interest in any Trust Property and Trust Agreement, or any of the Equipment Notes or any other interest in or security under any Indenture, for sale, to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any Person in violation of the Securities Act.

 

(n)                                 Section 1110.  With respect to each Aircraft delivered on such Delivery Date, the related Mortgagee is entitled to the benefits of Section 1110 (as in effect on such date) in the event of a case under Chapter 11 of the Bankruptcy Code in which JetBlue is a debtor.

 

(o)                                 Accuracy of Information.  Neither the Operative Agreements to which it is a party as of such date nor other material information relating to the Aircraft or the operations or financial condition of JetBlue furnished to the Policy Provider contain any statement of a material fact which was untrue or misleading in any material respect when made.  JetBlue has no knowledge of any circumstances that could reasonably be expected to cause a Material Adverse Change with respect to JetBlue except for matters disclosed in (i) the financial statements referred to above or (ii) any subsequent Quarterly Report on Form 10-Q, Current Report on Form 8-K or any press release issued by JetBlue filed by JetBlue with the SEC on or prior to the Closing Date or such Delivery Date, as the case may be.

 

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Section 2.02     Covenants of JetBlue.  JetBlue covenants and agrees with the Policy Provider as follows:

 

(a)                                  Without the prior written consent of the Policy Provider (which may be granted or withheld in its sole discretion), it will not vary any of the terms in any Operative Agreements in any material respect as regards to the interests, rights and remedies of the Policy Provider from those in the forms attached to the Note Purchase Agreement.

 

(b)                                 Notwithstanding that the related Aircraft is in the possession of a lessee or sublessee, in all circumstances the Aircraft shall be maintained in accordance with the maintenance standards required by, or substantially equivalent to those required by, the FAA or any other applicable civil aviation authority.

 

(c)                                  It shall not, and shall not suffer any of its Affiliates to, purchase or otherwise acquire any of the Class G-1 Certificates or Class G-2 Certificates.

 

(d)                                 Documentation.  In connection with any Financing Agreement (as defined in the Note Purchase Agreement), the Policy Provider shall receive (a) a copy, delivered on or promptly (but in no event more than 10 days) after the applicable Delivery Date, of each opinion of counsel addressed to S&P and the Indenture Trustee, in respect of JetBlue and the Subordination Agent or any of the other parties to the Operative Agreements and the Transactions, dated such Delivery Date and in form and substance reasonably satisfactory to the Policy Provider, addressed to the Policy Provider (or accompanied by a letter from the counsel rendering such opinion to the effect that the Policy Provider is entitled to rely on such opinion as of its date as if it were addressed to the Policy Provider) and addressing such matters as the Policy Provider may reasonably request, and the counsel providing each such opinion shall have been instructed by its client to deliver such opinion to the addressees thereof and (b) a copy, delivered upon or promptly (but in no event more than 10 days) after receipt following recordation, of each Financing Statement and each document recorded with the FAA.  For the purposes of this Section 2.02(d), delivery of the Policy by the Policy Provider shall be deemed to be consent by the Policy Provider to the forms of opinions of counsel provided as Exhibits A-E to the Participation Agreement.

 

(e)                                  JetBlue shall comply with the provisions of the Operative Documents relating to maintenance, operation, leasing, subleasing and country of reregistration of the Aircraft.

 

(f)                                    With respect to any individual Aircraft financed under an Indenture, JetBlue shall not use debt represented by Class G Certificates in such financing that would create a loan to Aircraft value ratio (as described under the “Summary — Loan to Aircraft Value Ratios” in the Offering Document) in excess of 51.5%.

 

(g)                                 Insurance.  JetBlue shall comply with, or cause to be complied with, the insurance provisions set forth in Section 4.06 of each Indenture, including Annex B thereto, and the provisions of Annex A hereto, which provisions are hereby incorporated by this reference as if set forth in full herein; provided that to the extent that Annex A conflicts with either Section 4.06 of any Indenture or Annex B thereto, the provisions of Annex A shall control; provided

 

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further that the Policy Provider agrees to accept, in lieu of insurance against any risk with respect to which insurance is required under this Section 2.02(g), indemnification from, or insurance provided by, the U.S. Government (as defined in each Indenture) or, upon the written consent of the Mortgagee (as defined in each Indenture), other Government Entity (as defined in each Indenture), against such risk in an amount that, when added to the amount of insurance (including permitted self-insurance), if any, against such risk that JetBlue (or any Permitted Lessee (as defined in each Indenture)) may continue to maintain, in accordance with this Section 2.02(g), shall be at least equal to the amount of insurance against such risk otherwise required by this Section 2.02(g).

 

Section 2.03     Covenants of the Class G Trustees and Subordination Agent.  The Class G Trustees and Subordination Agent shall perform and observe, in all material respects, all of its covenants, obligations and agreements in any Operative Agreement to which it is a party to be observed or performed by it.

 

Section 2.04     Representations, Warranties and Covenants of the Policy Provider.  The Policy Provider represents, warrants and covenants to JetBlue and the Subordination Agent as follows:

 

(a)                                  Organization and Licensing.  The Policy Provider is duly organized, validly existing and in good standing as a New York-domiciled stock insurance company duly qualified to conduct an insurance business in every jurisdiction where qualification may be necessary to accomplish the Transactions.

 

(b)                                 Corporate Power.  The Policy Provider has the corporate power and authority to issue each Policy, to execute and deliver this Insurance Agreement and the other Operative Agreements to which it is a party and to perform all of its obligations hereunder and thereunder.

 

(c)                                  Authorization; Approvals.  Except as have already been obtained, no authorization, consent, approval, license, formal exemption or declaration from, nor any registration or filing with, any court or governmental agency or body of the United States of America or the State of New York, which if not obtained would affect or impair the validity or enforceability of either Policy against the Policy Provider, is required in connection with the execution and delivery by the Policy Provider of the Policies or this Insurance Agreement or in connection with the Policy Provider’s performance of its obligations thereunder or hereunder.

 

(d)                                 Enforceability.  This Insurance Agreement constitutes, and each Policy, when issued, will constitute, a legal, valid and binding obligation of the Policy Provider, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, receivership and other similar laws affecting creditors’ rights generally as they would apply in the event of the bankruptcy, receivership, insolvency or similar proceeding of the Policy Provider and to general principles of equity and subject to principles of public policy limiting the right to enforce the indemnification provisions contained herein, insofar as such provisions relate to indemnification for liabilities arising under federal securities laws.

 

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(e)                                  Exemption from Registration.  The Policies are exempt from registration under the Securities Act.

 

(f)                                    No Conflicts.  Neither the execution or delivery by the Policy Provider of the Policies and the Operative Agreements to which it is a party, nor the performance by the Policy Provider of its obligations thereunder, will conflict with any provision of the certificate of incorporation or the bylaws of the Policy Provider nor result in a breach of, or constitute a default under, any material agreement or other instrument to which the Policy Provider is a party or by which any of its property is bound nor violate any judgment, order or decree applicable to the Policy Provider of any governmental or regulatory body, administrative agency, court or arbitrator having jurisdiction over the Policy Provider to the extent any such conflict, breach, default or violation would result in a Material Adverse Change in the financial results or operations of the Policy Provider or impairs the Policy Provider’s ability to perform its obligations under each  Policy or any of the Operative Agreements.

 

(g)                                 Financial Information.  The consolidated financial statements of the Policy Provider and its subsidiaries as of December 31, 2003 and December 31, 2002 and for each of the three years in the period ended December 31, 2003, and the accompanying footnotes, together with a report thereon of PricewaterhouseCoopers, independent certified public accountants, included in the Annual Report on Form 10-K of MBIA Inc. for the year ended December 31, 2003 and the consolidated financial statements of MBIA and its subsidiaries as of September 30, 2004 and for the nine month periods ended September 30, 2004 and September 30, 2003 included in the Quarterly Report on Form 10-Q of MBIA Inc. for the period ended September 30, 2004, incorporated by reference into the Offering Document, fairly present in all material respects the financial condition of the Policy Provider and its subsidiaries as of such dates and for the periods covered by such statements in accordance with generally accepted accounting principles consistently applied.  Since September 30, 2004, there has been no change in the financial condition of the Policy Provider and its subsidiaries that would materially and adversely affect the Policy Provider’s ability to perform its obligations under the Policies.

 

(h)                                 Policy Provider Information.  The information with respect to the Policy Provider set forth or incorporated by reference in the section of the Offering Document contained therein captioned “Description of the Policy Provider” does not purport to provide the scope of disclosure required to be included by the Securities Act with respect to a registrant in connection with the offer and sale of securities of such registrant.  However, the information in such section does not contain any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(i)                                     No Litigation.  There are no actions, suits, proceedings or investigations pending or, to the best of the Policy Provider’s knowledge, threatened against it at law or in equity or before or by any court, governmental agency, board or commission or any arbitrator which, if decided adversely, would materially and adversely affect its ability to perform its obligations under the Policies or this Insurance Agreement.

 

(j)                                     Compliance with Law, Etc.  No practice, procedure or policy employed, or proposed to be employed, by the Policy Provider in the conduct of its business violates any law,

 

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regulation, judgment, agreement, order or decree applicable to the Policy Provider that, if enforced, could result in a Material Adverse Change with respect to the Policy Provider.

 

ARTICLE III

THE POLICIES
; REIMBURSEMENT; INDEMNIFICATION

 

Section 3.01     Issuance of the Policies.  The Policy Provider agrees to issue each Policy on the Closing Date subject to satisfaction of the conditions precedent set forth below on or prior to the Closing Date:

 

(a)                                  Operative Agreements.  The Policy Provider shall have received a copy of (i) each of the Operative Agreements to be executed and delivered on or prior to the Closing Date, in form and substance reasonably satisfactory to the Policy Provider, duly authorized, executed and delivered by each party thereto and (ii) a copy of the Offering Document;

 

(b)                                 Certified Documents and Resolutions.  The Policy Provider shall have received (i) a copy of the applicable organizational documents of JetBlue and (ii) a certificate of the Secretary or Assistant Secretary of JetBlue dated the Closing Date stating that attached thereto is a true, complete and correct copy of resolutions duly adopted by the Board of Directors of JetBlue authorizing the execution, delivery and performance by JetBlue of the Operative Agreements to which it is a party and the consummation of the Transactions and that such applicable organizational documents and resolutions are in full force and effect without amendment or modification on the Closing Date;

 

(c)                                  Incumbency Certificate.  The Policy Provider shall have received a certificate of the Secretary or an Assistant Secretary of each of JetBlue and the Subordination Agent certifying the names and signatures of the officers of JetBlue and the Subordination Agent authorized to execute and deliver the Operative Agreements to which it is a party on or prior to Closing Date and that, with respect to JetBlue, shareholder consent to the execution and delivery of such documents by JetBlue, is not necessary or has been obtained;

 

(d)                                 Representations and Warranties.  The representations and warranties of JetBlue and the Subordination Agent dated the Closing Date set forth or incorporated by reference in this Insurance Agreement shall be true and correct on and as of the Closing Date;

 

(e)                                  Documentation.  The Policy Provider shall have received a copy of each document, instrument, certificate and opinion delivered on or before the Closing Date pursuant to the Operative Agreements and the Underwriting Agreement (except for the 10b-5 opinion, the comfort letters of Ernst & Young LLP and the opinion of Shearman & Sterling LLP as counsel to the Underwriters), including each opinion of counsel addressed to any of Moody’s, S&P, the Class G Trustees, JetBlue and the Subordination Agent, in respect of JetBlue and the Subordination Agent or any of the other parties to the Operative Agreements and the Transactions dated the Closing Date in form and substance reasonably satisfactory to the Policy Provider, addressed to the Policy Provider (or accompanied by a letter from the counsel rendering such opinion to the effect that the Policy Provider is entitled to rely on such opinion as of its date as if it were addressed to the Policy Provider) and addressing such matters as the

 

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Policy Provider may reasonably request, and the counsel providing each such opinion shall have been instructed by its client to deliver such opinion to the addressees thereof;

 

(f)                                    Approvals, Etc.  The Policy Provider shall have received true and correct copies of all approvals, licenses and consents, if any, including any required approval of the shareholders of JetBlue, required in connection with the Transactions;

 

(g)                                 No Litigation, Etc.  No suit, action or other proceeding, investigation or injunction, or final judgment relating thereto, shall be pending or threatened before any court, governmental or administrative agency or arbitrator in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with any of the Operative Agreements or the consummation of the Transactions;

 

(h)                                 Legality.  No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any government or governmental or administrative agency or court that would make the Transactions illegal or otherwise prevent the consummation thereof;

 

(i)                                     Issuance of Ratings.  The Policy Provider shall have received confirmation that the risk secured by the applicable Policy is rated no lower than “BBB+” by S&P and “Baa2” by Moody’s, the Class G-1 Certificates and Class G-2 Certificates, when issued, will each be rated “AAA” by S&P and “Aaa” by Moody’s, and that the Class C Certificates, when issued, will be rated “BB+” by S&P and “Ba1” by Moody’s, and shall have received the confirmation from S&P of a capital charge acceptable to the Policy Provider;

 

(j)                                     Satisfactory Documentation.  The Policy Provider and its counsel shall have reasonably determined that all documents, certificates and opinions to be delivered in connection with the Certificates conform to the terms of the related Trust Agreement, the Offering Document, this Insurance Agreement and the Intercreditor Agreement;

 

(k)                                  Filings.  The Policy Provider shall have received evidence that there shall have been made and shall be in full force and effect, all filings, recordings and registrations, and there shall have been given or taken any notice or similar action as is necessary in order to establish, perfect, protect and preserve the right, title and interest of the Policy Provider created by the Operative Agreements executed and delivered on or prior to the Closing Date;

 

(l)                                     Conditions Precedent.  All conditions precedent to the issuance of the Certificates under the Trust Agreements shall have been satisfied or waived (with the consent of the Policy Provider).  All conditions precedent to the effectiveness of the Liquidity Facilities shall have been satisfied or waived; and

 

(m)                               Expenses.  The Policy Provider shall have received payment in full of all amounts required to be paid to or for account of the Policy Provider on or prior to the Closing Date.

 

Section 3.02     Payment of Fees and Premium.  (a)  Legal Fees.  The Policy Provider shall be entitled to payment of the Policy Provider’s attorneys’ fees and all other reasonable and actual fees expenses and disbursements (including without limitation accountants’ fees) incurred by the Policy Provider in connection with the negotiation,

 

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preparation, execution and delivery of the Offering Documents, the Operative Agreements and all other documents delivered with respect thereto, as provided in the Policy Fee Letter.  Such attorney’s fees and expenses shall be payable by JetBlue on the Closing Date upon the presentation of an invoice for any such fees, costs and expenses.

 

(b)                                 Rating Agency Fees.  The Policy Provider shall be entitled to reimbursement for all periodic rating agency fees, expenses and disbursements incurred by the Policy Provider, and not invoiced by a rating agency directly to JetBlue, in connection with the transactions described herein and in the Operative Agreements, such reimbursement to be made by JetBlue within 30 days of presentation of an invoice therefor; provided that JetBlue shall only be liable for such fees, expenses and disbursements incurred by the Policy Provider as a result of a request from a rating agency or reasonable requests by the Policy Provider for rating agency review of the transactions described herein and in the Operative Documents.

 

(c)                                  [Reserved]

 

(d)                                 Premium.

 

(i)                                     In consideration of the issuance by the Policy Provider of each Policy, JetBlue shall pay or cause to be paid to the Policy Provider, the Premium and such additional amounts, in each case, as and when due, in accordance with the Policy Fee Letter.

 

(ii)                                  No portion of the Premium paid shall be refundable without regard to whether the Policy Provider makes any payment under either Policy or any other circumstances relating to the Class G Certificates or provision being made for payment of the Class G Certificates prior to maturity.

 

Section 3.03     Reimbursement Obligation.  (a)  As and when due in accordance with and from the funds specified in Sections 2.4(a) and 3.2 of the Intercreditor Agreement, the Policy Provider shall be entitled to reimbursement for any payment made by the Policy Provider under either Policy or to the Primary Liquidity Provider under Section 2.6(c) and 3.7(c) of the Intercreditor Agreement, which reimbursement shall be due and payable on the date provided in such Sections, in an amount equal to the sum of the amount to be so paid and all amounts previously paid that remain unreimbursed, plus accrued and unpaid interest thereon from the date such amounts became due until paid in full (as well as before judgment), at a rate of interest equal to the greater of (i) the Base Rate plus 1% and (ii) the applicable interest rate on the Series G-1 Equipment Notes (in the case of a drawing under the Policy in respect of the Class G-1 Certificates) or on the Series G-2 Equipment Notes (in the case of a drawing under the Policy in respect of the Class G-2 Certificates), plus, in each case, 1%; provided that, for the avoidance of doubt, any obligation to pay interest that is created by this Section 3.03(a) shall be a non-recourse obligation of JetBlue and such accrued interest shall be payable solely from amounts distributed pursuant to Sections 2.4(a) and 3.2 of the Intercreditor Agreement and JetBlue shall not be liable for any shortfall that may arise as a result thereof.  In addition, to the extent that any such payment by the Policy Provider shall have been made as a result of a default by a Primary Liquidity Provider in its obligation to make an Advance, as provided in the Intercreditor Agreement, the Policy Provider shall be entitled to the payment of interest on such amounts to

 

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the extent, at the time and in the priority that the Primary Liquidity Provider would have been paid pursuant to the Intercreditor Agreement had the Primary Liquidity Provider made such Advance up to a maximum of six such payments by the Policy Provider.

 

(b)                                 [Reserved]

 

(c)                                  JetBlue agrees to pay to the Policy Provider any and all charges, fees, costs and expenses and disbursements that the Policy Provider may reasonably pay or incur, including reasonable attorneys’ and accountants’ fees and expenses (without duplication of amounts paid to the Policy Provider in respect of the Operative Agreements), in connection with (i) the enforcement, defense or preservation of any rights in respect of any of the Operative Agreements, including defending, monitoring or participating in any litigation or proceeding and (ii) any amendment, waiver or other action requested by JetBlue with respect to, or related to, any Operative Agreements or to any form document attached to any Operative Agreement as exhibit, schedule or annex thereto, whether or not executed or completed.  Such reimbursement shall be due on the dates on which such charges, fees, costs, expenses and disbursements are paid or incurred by the Policy Provider.

 

Section 3.04     Indemnification.  JetBlue agrees (i) that the Policy Provider, upon execution and delivery thereof, will be entitled to the full benefit of the General Indemnity contained in Section 7 of each Participation Agreement as if such provisions were set forth in full herein, the Policy Provider were an Indemnitee (as defined in the related Participation Agreement) thereunder and the Operative Agreements referred to therein include this Insurance Agreement and (ii) that it shall name the Policy Provider as an Indemnitee in each Participation Agreement and that the Policy Provider shall be entitled to the full benefit of the General Indemnity provisions set forth in or incorporated by reference in each Participation Agreement; provided, however, any exclusion contained in any Participation Agreement or form thereof related to any representation or warranty by any Indemnitee other than the Policy Provider, the failure by any Indemnitee other than the Policy Provider to perform or observe any agreement, covenant or condition in any of the Operative Agreements, the acts or omissions involving the willful misconduct or gross negligence of any Indemnitee other than the Policy Provider or any other action or omission of any other Person other than the Policy Provider shall not apply to the indemnification obligations of JetBlue to the Policy Provider and to the extent not paid, all money due under this 3.04 shall constitute Policy Provider Obligations (as defined in the Intercreditor Agreement).

 

Section 3.05     Procedure for Payment of Fees and Premium.  (a)  All payments to the Policy Provider hereunder shall be made in lawful currency of the United States and in immediately available funds and shall be made prior to 2:00 p.m. (New York City time) on the date such payment is due by wire transfer to JPMorgan Chase Bank, ABA #021 000 021 for credit to MBIA Insurance Corporation Premium Account, Account No. 910-2-721728 Re:  JetBlue Airways Pass Through Trust 2004-2, or to such other office or account as the Policy Provider may direct.  Payments received by the Policy Provider at or after 2:00 p.m. (New York City time) shall be deemed to have been received on the next succeeding Business Day, and such extension of time shall be included in computing interest, commissions or fees, if any, in connection with such payment.

 

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(b)                                 Unless otherwise specified herein, the Policy Provider shall be entitled to interest on all amounts owed to the Policy Provider under this Insurance Agreement, from the date such amounts become due and payable until paid in full, at a rate of interest equal to the Base Rate from time to time in effect plus 1%.

 

(c)                                  Unless otherwise specified herein, interest payable to the Policy Provider under this Insurance Agreement shall be calculated on the basis of a 365 day year and the actual number of days elapsed and shall be payable on demand.

 

Section 3.06     Policy Endorsement.  Regardless of whether or not the Policy Provider makes a Policy Provider Election, the Policy Provider shall, on the first Business Day (which shall be a Special Distribution Date) that is 21 months after the last date on which full payment was made on the first Series G-1 Equipment Note or Series G-2 Equipment Note, as applicable, as to which there has subsequently been a failure to pay principal or that has been accelerated, endorse the applicable Policy, if not already endorsed, to so provide for the payment to the Liquidity Provider of interest accruing on the outstanding drawings in respect of the Class G-1 and Class G-2 Liquidity Facilities from and after the end of such 21-month period as and when such interest becomes due in accordance with such Liquidity Facilities.

 

Section 3.07     Payment by Subordination Agent.  (a)  All of the fees, expenses and disbursements set forth in Sections 3.02 and 3.03(c) shall be payable by JetBlue as provided in such Sections.  To the extent of JetBlue’s failure to pay any such fees, expenses and disbursements, the Subordination Agent shall pay such amounts pursuant to the Operative Documents.

 

(b)                                 Notwithstanding anything herein to the contrary, all payments to be made by the Subordination Agent under this Section 3.07 shall be made only from the amounts that constitute Scheduled Payments, Special Payments or payments under Section 7 of the Participation Agreements and only to the extent that the Subordination Agent shall have sufficient income or proceeds therefrom to enable the Subordination Agent to make payments in accordance with the terms of the Intercreditor Agreement.  The Policy Provider agrees that with respect to payments to be made by the Subordination Agent (i) it will look solely to such amount to the extent available for distribution to it as provided in the Intercreditor Agreement, and (ii) the Subordination Agent, in its individual capacity, is not personally liable to it for any amounts payable or liability under this letter except as expressly provided in the Intercreditor Agreement.

 

ARTICLE IV

FURTHER AGREEMENTS

 

Section 4.01     Effective Date; Term of the Insurance Agreement.  This Insurance Agreement shall take effect on the Closing Date and shall remain in effect until the later of (a) such time as the Policy Provider is no longer subject to a claim under either Policy and each Policy shall have been surrendered to the Policy Provider for cancellation and (b) all amounts payable to the Policy Provider by JetBlue or the Subordination Agent hereunder or from any other source hereunder or under the Operative Agreements and all amounts payable under the

 

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Class G-1 Certificates and the Class G-2 Certificates have been paid in full; provided, however, that the provisions of Section 3.04 hereof shall survive any termination of this Insurance Agreement.

 

Section 4.02     Further Assurances and Corrective Instruments.  (a)  Neither JetBlue nor the Subordination Agent shall grant any waiver of rights or agree to any amendment or modification to any of the Operative Agreements to which either of them is a party which waiver, amendment, or modification would have an adverse effect on the rights or remedies of the Policy Provider without the prior written consent of the Policy Provider so long as the Policy Provider shall be the Controlling Party, and any such waiver without prior written consent of the Policy Provider shall be null and void and of no force or effect.

 

(b)                                 To the extent permitted by law, each of JetBlue and the Subordination Agent agrees that it will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as the Policy Provider may reasonably request and as may be required in the Policy Provider’s reasonable judgment to effectuate the intention of or facilitate the performance of this Insurance Agreement.

 

Section 4.03     Obligations Absolute.  (a)  The obligations of JetBlue, the Subordination Agent and the Class G Trustees hereunder and under the Operative Agreements shall be absolute and unconditional and shall be paid or performed strictly in accordance with this Insurance Agreement and the other Operative Agreements under all circumstances irrespective of:

 

(i)                                     any lack of validity or enforceability of, or any amendment or other modifications of, or waiver, with respect to any of the Operative Agreements or the Certificates;

 

(ii)                                  any exchange or release of any other obligations hereunder;

 

(iii)                               the existence of any claim, setoff, defense, reduction, abatement or other right that any Person may have at any time against the Policy Provider or any other Person;

 

(iv)                              any document presented in connection with either Policy proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(v)                                 any payment by the Policy Provider under either Policy against presentation of a certificate or other document that does not strictly comply with terms of such Policy;

 

(vi)                              any failure of JetBlue to receive the proceeds from the sale of the Certificates; and

 

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(vii)                           any other circumstances, other than payment in full, that might otherwise constitute a defense available to, or discharge of, any Person in respect of any Operative Agreements.

 

(b)                                 Each of the parties hereto renounces the right to assert as a defense to the performance of their respective obligations herein each of the following:  (i) to the extent permitted by law, any and all redemption and exemption rights and the benefit of all valuation and appraisement privileges against the indebtedness and obligations evidenced by any Operative Agreements or by any extension or renewal thereof; (ii) presentment and demand for payment, notices of nonpayment and of dishonor, protest of dishonor and notice of protest; (iii) all notices in connection with the delivery and acceptance hereof and all other notices in connection with the performance, default or enforcement of any payment hereunder, except as required by the Operative Agreements; and (iv) all rights of abatement, diminution, postponement or deduction, or to any defense, or to any right of setoff or recoupment arising out of any breach under any of the Operative Agreements, by any party thereto or any beneficiary thereof, or out of any obligation at any time owing to JetBlue.

 

(c)                                  JetBlue (i) agrees that any consent, waiver or forbearance hereunder or in the Operative Agreements with respect to an event shall operate only for such event and not for any subsequent event; (ii) consents to any and all extensions of time that may be granted by the Policy Provider with respect to any payment hereunder or other provisions hereof and to the release of any security at any time given for any payment hereunder, or any part thereof, with or without substitution, and to the release of any Person or entity liable for any such payment; and (iii) consents to the addition of any and all other makers, endorsers, guarantors and other obligors for any payment hereunder, and to the acceptance of any and all other security for any payment hereunder, and agree that the addition of any such obligors or security shall not affect the liability of JetBlue for any payment hereunder.

 

(d)                                 No failure by the Policy Provider to exercise, and no delay by the Policy Provider in exercising, any right hereunder or in the Operative Agreements shall operate as a waiver thereof.  The exercise by the Policy Provider of any right hereunder shall not preclude the exercise of any other right, and the remedies provided herein to the Policy Provider are declared in every case to be cumulative and not exclusive of any remedies provided by law or equity.

 

(e)                                  Nothing herein shall be construed as prohibiting any party hereto from pursuing any rights or remedies it may have against any Person in a separate legal proceeding.

 

Section 4.04     Assignments; Reinsurance; Third-Party Rights.  (a)  This Insurance Agreement shall be a continuing obligation of the parties hereto and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  The Subordination Agent, and except for any transaction expressly permitted by Section 5.02 of the applicable Class G Trust Agreement, JetBlue, may not assign their respective rights under this Insurance Agreement, or delegate any of their duties hereunder, without the prior written consent of the other parties hereto.  Any assignments made in violation of this Insurance Agreement shall be null and void.

 

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(b)                                 The Policy Provider shall have the right to grant participation in its rights under this Insurance Agreement and to enter into contracts of reinsurance with respect to the Policies upon such terms and conditions as the Policy Provider may in its discretion determine; provided, however, that no such participation or reinsurance agreement or arrangement shall relieve the Policy Provider of any of its obligations hereunder or under either Policy or grant to any participant or reinsurer any rights hereunder or under any Operative Agreement.

 

(c)                                  Except as provided herein with respect to participants and reinsurers, nothing in this Insurance Agreement shall confer any right, remedy or claim, express or implied, upon any Person, including, particularly, any Class G Certificateholder, other than the Policy Provider against JetBlue, or JetBlue against the Policy Provider, and all the terms, covenants, conditions, promises and agreements contained herein shall be for the sole and exclusive benefit of the parties hereto and their successors and permitted assigns.  Neither the Class G Trustees nor any Class G Certificateholder shall have any right to payment from the Premium paid or payable hereunder or from any amounts paid by JetBlue pursuant to Sections 3.02 or 3.03.

 

Section 4.05     Liability of the Policy Provider.  Neither the Policy Provider nor any of its officers, directors or employees shall be liable or responsible for:  (a) the use that may be made of either Policy by the applicable Class G Trustee or for any acts or omissions of such Class G Trustee in connection therewith; or (b) the validity, sufficiency, accuracy or genuineness of documents delivered to the Policy Provider in connection with any claim under either Policy, or of any signatures thereon, even if such documents or signatures should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged (unless the Policy Provider shall have actual knowledge thereof).  In furtherance and not in limitation of the foregoing, the Policy Provider may accept documents that appear on their face to be in order, without responsibility for further investigation.

 

ARTICLE V

MISCELLANEOUS

 

Section 5.01     Amendments, Etc.  This Insurance Agreement may be amended, modified, supplemented or terminated only by written instrument or written instruments signed by the parties hereto; provided that if such amendment, modification, supplement or termination would have a material adverse affect on the interests of the Subordination Agent, a Trustee or any Class G Certificateholder, Ratings Confirmation shall also be obtained prior to such amendment, modification, supplement or termination being effective.  JetBlue agrees to provide a copy of any amendment to this Insurance Agreement promptly to the Subordination Agent and the rating agencies maintaining a rating on the Class G-1 Certificates and the Class G-2 Certificates.  No act or course of dealing shall be deemed to constitute an amendment, modification, supplement or termination hereof.

 

Section 5.02     Notices.  All demands, notices and other communications to be given hereunder shall be in writing (except as otherwise specifically provided herein) and shall be mailed by registered mall or personally delivered and telecopied to the recipient as follows:

 

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(a)                                  To the Policy Provider:

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:  Insured Portfolio Management, Structured Finance
Facsimile:  (914) 765-3810
Confirmation:  (914) 273-4545

 

(in each case in which notice or other communication to the Policy Provider refers to an event of default under any Operative Agreement or a claim on either Policy shall be deemed to constitute consent or acceptance, then a copy of such notice or other communication should also be sent to the attention of the general counsel of each of JetBlue and the Class G Trustees and, in all cases, both any original and all copies shall be marked to indicate “URGENT MATERIAL ENCLOSED.”)

 

(b)                                 To JetBlue:

 

JetBlue Airways Corporation
118-29 Queens Boulevard
Forest Hills, New York 11375
Attention:  Vice President – Corporate Finance
Facsimile:       (718) 709-3639

 

with a copy to:

 

JetBlue Airways Corporation
118-29 Queens Boulevard
Forest Hills, New York 11375
Attention:  General Counsel
Facsimile:       (718) 709-3631

 

(c)                                  To the Subordination Agent:

 

Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001
Attention:       Corporate Trust Administration
Facsimile:       (302) 636-4140

 

A party may specify an additional or different address or addresses by writing mailed or delivered to the other parties as aforesaid.  All such notices and other communications shall be effective upon receipt unless received after business hours on any day, in which case on the opening of business on the next Business Day.

 

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Section 5.03     Severability.  In the event that any provision of this Insurance Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, the parties hereto agree that such holding shall not invalidate or render unenforceable any other provision hereof.  The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by any party hereto is unavailable or unenforceable shall not affect in any way the ability of such party to pursue any other remedy available to it.

 

Section 5.04     Governing Law.  This Insurance Agreement shall be governed by and construed in accordance with the laws of the State of New York, including all matters of construction, validity and performance.  This Insurance Agreement is being delivered in New York.

 

Section 5.05     Consent to Jurisdiction.  (a)  The parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of the United States District Court for the Southern District of New York and any court in the State of New York located in the City and County of New York, and any appellate court from any thereof, in any action, suit or proceeding brought against it and to or in connection with any of the Operative Agreements or the Transactions or for recognition or enforcement of any judgment, and the parties hereto hereby irrevocably and unconditionally agree that all claims in respect of any such action or proceeding may be heard or determined in such New York state court or, to the extent permitted by law, in such federal court.  The parties hereto agree that a final unappealable judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  To the extent permitted by applicable law, the parties hereto hereby waive and agree not to assert by way of motion, as a defense or otherwise in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such courts, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the related documents or the subject matter thereof may not be litigated in or by such courts.

 

(b)                                 To the extent permitted by applicable law, the parties hereto shall not seek and hereby waive the right to any review of the judgment of any such court by any court of any other nation or jurisdiction which may be called upon to grant an enforcement of such judgment.

 

(c)                                  Nothing contained in this Insurance Agreement shall limit or affect any party’s right to serve process in any other manner permitted by law or to start legal proceedings relating to any of the Operative Agreements against any other party or its properties in the courts of any jurisdiction.

 

Section 5.06     Consent of the Policy Provider.  No disclosure relating to the Policy Provider contained in any Offering Document, which disclosure modifies, alters, changes, amends or supplements the disclosure relating to the Policy Provider provided by the Policy Provider for use in the Offering Document, shall be made without the Policy Provider’s prior written consent.  In the event that the consent of the Policy Provider is required under any of the Operative Agreements, the determination whether to grant or withhold such consent shall be made by the Policy Provider in its sole discretion without any implied duty towards any other Person, except as otherwise expressly provided therein.

 

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Section 5.07     Counterparts.  This Insurance Agreement may be executed in counterparts by the parties hereto, and all such counterparts shall constitute one and the same instrument.

 

Section 5.08     Headings.  The headings of Articles and Sections and the Table of Contents contained in this Insurance Agreement are provided for convenience only.  They form no part of this Insurance Agreement and shall not affect its construction or interpretation.

 

Section 5.09     Trial by Jury Waived.  Each party hereby waives, to the fullest extent permitted by law, any right to a trial by jury in respect of any litigation arising directly or indirectly out of, under or in connection with this Insurance Agreement or any of the other Operative Agreements or any of the Transactions contemplated hereunder or thereunder.  Each party hereto (A) certifies that no representative, agent or attorney of any party hereto has represented, expressly or otherwise, that it would not, in the event of litigation, seek to enforce the foregoing waiver and (B) acknowledges that it has been induced to enter into the Operative Agreements to which it is a party by, among other things, this waiver.

 

Section 5.10     Limited Liability.  No recourse under any Operative Agreement shall be had against, and no personal liability shall attach to, any officer, employee, director, affiliate or shareholder of any party hereto, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise in respect of any of the Operative Agreements, the Certificates or either Policy, it being expressly agreed and understood that each Operative Agreement is solely a corporate obligation of each party hereto, and that any and all personal liability, either at common law or in equity, or by statute or constitution, of every such officer, employee, director, affiliate or shareholder for breaches of any party hereto of any obligations under any Operative Agreement is hereby expressly waived as a condition of and in consideration for the execution and delivery of this Insurance Agreement.

 

Section 5.11     Entire Agreement.  This Insurance Agreement, each Policy, the Policy Fee Letter and the other Operative Agreements set forth the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersede and replace any agreement or understanding that may have existed between the parties prior to the date hereof in respect of such subject matter.

 

Section 5.12     Independent Agreements.  This Insurance Agreement and each Policy are separate and independent agreements.  No breach by any party hereto of any representation, warranty, covenant, agreement or undertaking contained herein shall in any way affect the obligations of the Policy Provider under either Policy.

 

Section 5.13     Successors and Assigns.  This Insurance Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Insurance Agreement, all as of the day and year first above mentioned.

 

 

MBIA INSURANCE CORPORATION,
as Policy Provider

 

 

 

 

 

By:

/s/ Adam M. Carta

 

 

 

Name:  Adam M. Carta

 

 

Title:    Assistant Secretary

 

 

 

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

 

Name:  W. Chris Sponenberg

 

 

Title:     Vice President

 

 

 

 

 

WILMINGTON TRUST COMPANY, as Class
G-1 Trustee and Class G-2 Trustee

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

 

Name:  W. Chris Sponenberg

 

 

Title:     Vice President

 

 

 

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

/s/ John Harvey

 

 

 

Name:  John Harvey

 

 

Title:    VP Corporate Finance & Treasurer

 

[Insurance Agreement signature page]

 



 

 

ANNEX A TO INSURANCE AGREEMENT

 

INSURANCE

 

A.                                   Bodily Injury Liability and Property Damage Liability Insurance.

 

1.                                       Except as provided in paragraph 2 of this Section A, and subject to the self insurance to the extent permitted by Section B hereof, JetBlue will at all times carry and maintain or cause to be carried and maintained, at no expense to any Additional Insured (as defined in the Indenture), on a non-discriminatory basis, comprehensive airline liability insurance, including passenger legal liability, bodily injury liability, property damage liability and contractual liability (exclusive of manufacturer’s product liability insurance and including, without limitation, aircraft liability war risk and allied perils insurance, if and to the extent the same is maintained by JetBlue (or Permitted Lessee (as defined in the Indenture)) with respect to other Similar Aircraft (as defined in the Indenture) owned or leased, and operated by JetBlue (or Permitted Lessee) on the same routes) with respect to the Aircraft (a) in an amount per occurrence not less than the greatest of (x) the amount of comprehensive airline legal liability insurance from time to time applicable to aircraft owned or leased and operated by JetBlue of the same type and operating on similar routes as the Aircraft (y) the amount of comprehensive legal liability insurance from time to time applicable to aircraft owned or leased and operated by air carriers with comparable route structures flying similar aircraft on similar routes and (z) the Minimum Liability Insurance Amount (as defined in the Indenture), (b) of the type and covering the same risks as from time to time applicable to aircraft operated by JetBlue (or any Permitted Lessee) of the same type which comprise JetBlue’s (or such Permitted Lessee’s) fleet or owned or leased by air carriers with comparable route structures flying similar aircraft on similar routes and (c) which is maintained in effect with insurers or reinsurers of recognized responsibility.  JetBlue shall maintain cargo liability insurance in an amount not less than the amount of cargo liability insurance maintained for other Similar Aircraft operated by JetBlue.

 

2.                                       During any period that the Aircraft or an Engine is on the ground and not in operation, JetBlue may carry or cause to be carried as to such non-operating property, in lieu of the insurance required by paragraph 1 above, and subject to the self-insurance to the extent permitted by Section B hereof, insurance otherwise conforming to the provisions of said paragraph 1 except that (a) the amounts of coverage shall not be required to exceed the amounts of bodily injury liability and property damage liability insurance from time to time applicable to aircraft or engines, as the case may be, owned or leased by JetBlue (or any Permitted Lessee) of the same or similar type as the Aircraft or Engine, as the case may be, which comprise JetBlue’s (or such Permitted Lessee’s) fleet or owned or leased by air carriers with comparable route structures flying similar aircraft on similar routes and which are on the ground and not in operation and (b) the scope of the risks covered and the type of insurance shall be the same as from time to time shall be applicable to aircraft or engines, as the case may be, owned or leased by JetBlue (or any Permitted Lessee) of the same or similar type which comprise JetBlue’s (or such Permitted Lessee’s) fleet or owned or leased by air carriers with comparable route structures flying similar aircraft on similar routes and which are on the ground and not in operation.

 

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B.                                     Self-Insurance.  JetBlue may self-insure, by way of deductible, premium adjustment provisions in insurance policies, or otherwise, under a program applicable to all aircraft in JetBlue’s fleet, the risks required to be insured against pursuant to Section A hereof and Section B of Annex B to each Indenture but in no case shall the self-insurance with respect to the Aircraft exceed the lesser of (x) 50% of the largest replacement value of any single aircraft in JetBlue’s fleet or (y) 1.5% of the average aggregate insurable value (during the preceding calendar year) of all aircraft on which JetBlue carries insurance, unless the Insurance Broker shall certify that the standard among air carriers with comparable route structures flying similar aircraft on similar routes is a higher level of self-insurance, in which case JetBlue may self-insure the Aircraft to such higher level; provided, however, that nothing contained in this Section B limiting JetBlue’s right to self-insure shall be deemed to apply to any mandatory minimum per aircraft (or, if applicable, per policy period or per annum), hull or liability insurance deductible imposed by hull or liability insurers that do not exceed industry standards for air carriers with comparable route structures flying similar aircraft on similar routes.

 

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EX-4.22 24 a04-11378_4ex4d22.htm EX-4.22

Exhibit 4.22

 

MBIA INSURANCE CORPORATION

 

FINANCIAL GUARANTY INSURANCE POLICY

 

November 15, 2004

 

Policy No. 45243

 

Re:

JetBlue Airways Pass Through Trust 2004-2G-1 (the “Class G-1 Trust”) $176,753,000 Floating Rate JetBlue Airways Pass Through Certificates, Series 2004-2G-1 (the “Class G-1 Certificates”)

 

 

Insured Obligation:

Payment of interest at the Stated Interest Rate for the Class G-1 Certificates and, without duplication, any Deposit relating to the Escrow Receipts referred to below and principal on the Class G-1 Certificates.

 

 

Beneficiary:

Wilmington Trust Company, as subordination agent (together with any successor subordination agent duly appointed and qualified under the Agreement (as defined below), the “Subordination Agent”)

 

MBIA INSURANCE CORPORATION (“MBIA”), for consideration received, hereby unconditionally, absolutely and irrevocably and without the assertion of any defenses to payment, including fraud in the inducement or fact or any other circumstances (other than payment in full) that would have the effect of discharging a surety in law or in equity guarantees to the Subordination Agent, subject only to the terms of this Policy (the “Policy”), payment of the Insured Obligation.  MBIA agrees to pay to the Subordination Agent, in respect of each Distribution Date, an amount equal to (each a “Deficiency Amount”):

 

(i)       with respect to any Regular Distribution Date other than the Final Legal Distribution Date, any shortfall in amounts available to the Subordination Agent (or, in the case of Escrow Receipts, the Paying Agent (as defined in the Escrow and Paying Agent Agreement for the Class G-1 Trust)), after giving effect to the subordination provisions of the Agreement and the application of any amounts available to the Paying Agent in the Class G-1 Paying Agent Account in respect of accrued interest at the Stated Interest Rate on the Class G-1 Deposits, any drawing paid under the Class G-1 Primary Liquidity Facility in respect of interest due on the Class G-1 Certificates on such Distribution Date and any withdrawal from the Class G-1 Primary Cash Collateral Account and the Class G-1 Above-Cap Account in respect of interest due on the Class G-1 Certificates on such Distribution Date in accordance with the Agreement, for the payment of accrued and unpaid interest on the Class G-1 Certificates and, without duplication, accrued and unpaid interest on any Deposit relating to the Escrow Receipts (as defined in and issued under the Escrow and Paying Agent Agreement for the Class G-1 Trust), in each case at the Stated Interest Rate for the Class G-1 Certificates on the Pool Balance of the Class G-1 Certificates on such Distribution Date;

 



 

(ii)      with respect to any Special Distribution Date (other than an Election Distribution Date or a Special Distribution Date established pursuant to the succeeding clause (iv) below) established by reason of receipt of a Special Payment (other than a Special Payment arising from the purchase of any Series G-1 Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 of the Agreement) constituting the proceeds of any Series G-1 Equipment Notes (as to which there has been a default in the payment of principal thereof or that has been accelerated) or the related Collateral, as the case may be, any shortfall in the amounts available to the Subordination Agent after giving effect to the subordination provisions of the Agreement, the application of any amounts available to the Paying Agent in the Class G-1 Paying Agent Account in respect of accrued interest at the Stated Interest Rate on the Class G-1 Deposits and, if such Special Payment is received prior to a Policy Provider Election with respect to such Series G-1 Equipment Note, any drawing paid under the Class G-1 Primary Liquidity Facility in respect of interest due on the Class G-1 Certificates on such Distribution Date and any withdrawal from the Class G-1 Primary Cash Collateral Account and the Class G-1 Above-Cap Account in respect of interest due on the Class G-1 Certificates on such Distribution Date in accordance with the Agreement, required to reduce the Pool Balance of the Class G-1 Certificates by an amount equal to the outstanding principal amount of such Series G-1 Equipment Note (determined immediately prior to the receipt of such proceeds and less the amount of any drawings previously paid by MBIA in respect of principal on such Series G-1 Equipment Note) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-1 Certificates for the period from the immediately preceding Regular Distribution Date to such Special Distribution Date; provided, however, that, notwithstanding anything to the contrary herein, the purchase of any Series G-1 Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 of the Agreement shall not result in a “Deficiency Amount” under this clause (ii) that is payable by MBIA under this paragraph regardless of whether or not the proceeds of such purchase, together with any other available funds, are sufficient to reduce the Pool Balance of the Class G-1 Certificates by an amount equal to the outstanding principal amount of such Series G-1 Equipment Notes (determined immediately prior to the receipt of such proceeds and less the amount of any drawings previously paid by MBIA in respect of principal on such Series G-1 Equipment Notes) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-1 Certificates from the period from the immediately preceding Regular Distribution Date to such Special Distribution Date;

 

(iii)     with respect to the Special Distribution Date established by reason of the failure of the Subordination Agent or the Class G-1 Trustee, as the case may be, to have received a Special Payment constituting the proceeds of any Series G-1 Equipment Note or the related Collateral (including, without limitation, proceeds received in connection with the purchase by any or all of the Class C Certificateholders of any Series G-1 Equipment Note pursuant to Section 2.7 of the Agreement) during the twenty-one (21) month period beginning on the last date on which full payment was made on such Series G-1 Equipment Note (the date of such payment in full, the “Last Payment Date”) as to which there has been a failure to pay principal or that has been accelerated subsequent to the Last Payment Date, the amount equal to the outstanding principal amount of such

 

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Series G-1 Equipment Note plus accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-1 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date; provided, however, if MBIA shall have duly given a Policy Provider Election (as defined below) with respect to such Series G-1 Equipment Note at the end of such twenty-one (21) month period and at least five (5) days prior to such Special Distribution Date, the Deficiency Amount shall be an amount equal to (A) with respect to such Special Distribution Date, the scheduled principal and interest payable but not paid on such Series G-1 Equipment Note (without regard to the acceleration thereof) during such twenty-one (21) month period (after giving effect to the application of any drawing paid under the Class G-1 Primary Liquidity Facility and any withdrawal from the Class G-1 Primary Cash Collateral Account and the Class G-1 Above-Cap Account attributable to such interest on such Series G-1 Equipment Note) and (B) thereafter, on each Regular Distribution Date following such Special Distribution Date as to which a Policy Provider Election has been given in respect of such Series G-1 Equipment Note, and prior to the establishment of an Election Distribution Date or a Special Distribution Date pursuant to the immediately succeeding clause (iv) with respect to such Series G-1 Equipment Note, an amount equal to the scheduled principal (without regard to the acceleration thereof) and interest payable on such Series G-1 Equipment Note on the related payment date;

 

(iv)    following the giving of any Policy Provider Election, with respect to any Business Day elected by MBIA upon twenty (20) days prior notice (which shall be a Special Distribution Date) and upon request by MBIA to the Subordination Agent to make a drawing under this Policy, an amount equal to the then outstanding principal balance of the Series G-1 Equipment Note as to which the Policy Provider Election was given (less any drawings previously paid by MBIA in respect of principal on such Series G-1 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-1 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date;

 

(v)     with respect to any Special Distribution Date which is an Election Distribution Date, an amount equal to the then outstanding principal balance of the Series G-1 Equipment Note as to which such Election Distribution Date relates (less any drawing previously paid by MBIA in respect of principal of such Series G-1 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-1 Certificates from the immediately preceding Regular Distribution Date to such Election Distribution Date; and

 

(vi)    with respect to the Final Legal Distribution Date, any shortfalls in amounts available to the Subordination Agent after giving effect to the subordination provisions of the Agreement and to the application of any amounts available to the Escrow Agent in the Class G-1 Paying Agent Account in respect of accrued interest on the Class G-1 Deposits, any drawing paid under the Class G-1 Primary Liquidity Facility in respect of interest included in the Final Distribution and any withdrawal from the Class G-1 Primary Cash Collateral Account and the Class G-1 Above-Cap Account in respect of interest included in the Final Distribution in accordance with the Agreement, for the payment in full of the Final Distribution (calculated as of such date but excluding any

 

3



 

accrued and unpaid Additional Payments or other premium) on the Class G-1 Certificates or, in the case that the full principal amount of the Class G-1 Deposit relating to the Escrow Receipts is not used to purchase the Class G-1 Equipment Notes, then with respect to the Final Withdrawal Date (as defined in the Escrow and Paying Agent Agreement for the Class G-1 Trust), any shortfall in amounts available to the Paying Agent for the payment in full of unpaid principal amount of the Escrow Receipts.

 

For the avoidance of doubt, no Deficiency Amount described in clauses (i)-(vi) above or payment to be made in respect of an Avoided Payment described below shall constitute an accelerated or acceleration payment.

 

If any amount paid or required to be paid in respect of the Insured Obligation is voided (a “Preference Event”) under any applicable bankruptcy, insolvency, receivership or similar law in an Insolvency Proceeding, and, as a result of such a Preference Event, the Beneficiary, the Class G-1 Trustee or any Class G-1 Certificateholder is required to return such voided payment, or any portion of such voided payment made or to be made in respect of the Class G-1 Certificates (including any disgorgement from the Class G-1 Certificateholders resulting from any such Insolvency Proceeding, whether such disgorgement is determined on a theory of preferential conveyance or otherwise) (an “Avoided Payment”), MBIA will pay an amount equal to each such Avoided Payment, irrevocably, absolutely and unconditionally and without the assertion of any defenses to payment, including fraud in inducement or fact or any other circumstances that would have the effect of discharging a surety in law or in equity, upon receipt by MBIA from the Beneficiary, the Class G-1 Trustee or such Class G-1 Certificateholder of (x) a certified copy of a final (non-appealable) order of a court exercising jurisdiction in such Insolvency Proceeding to the effect that the Beneficiary, the Class G-1 Trustee or such Class G-1 Certificateholder is required to return any such payment or portion thereof because such payment was voided under applicable law, with respect to which order the appeal period has expired without an appeal having been filed (the “Final Order”), (y) an assignment, in the form of Exhibit D hereto, irrevocably assigning to MBIA all rights and claims of such Beneficiary, the Class G-1 Trustee or such Class G-1 Certificateholder relating to or arising under such Avoided Payment and (z) a Notice of Avoided Payment in the form of Exhibit B hereto appropriately completed and executed by the Beneficiary, the Class G-1 Trustee or such Class G-1 Certificateholder.  Such payment shall be disbursed to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and not to the Beneficiary, the Class G-1 Trustee or such Class G-1 Certificateholder directly unless such Beneficiary, Class G-1 Trustee or Class G-1 Certificateholder has returned such payment to such receiver, conservator, debtor-in-possession or trustee in bankruptcy, in which case such payment shall be disbursed to such Class G-1 Certificateholder, the Class G-1 Trustee or the Beneficiary, as the case may be.

 

Notwithstanding the foregoing, in no event shall MBIA be obligated to make any payment in respect of any Avoided Payment, which payment represents a payment of the principal amount of the Class G-1 Certificates, prior to the time MBIA would have been required to make a payment in respect of such principal pursuant to sub-paragraphs (ii)-(vi) of the definition of Deficiency Amount in this Policy; provided, further, that no payment of principal under this Policy on any Distribution Date, other than with respect to an Avoided Payment, shall exceed the Net Principal Policy Amount (as defined below) for such Distribution Date; provided,

 

4



 

further, that no payment, other than with respect to an Avoided Payment, of a Deficiency Amount shall be in excess of the then outstanding Pool Balance of the Class G-1 Certificates and accrued and unpaid interest thereon at the Stated Interest Rate on the Class G-1 Certificates.  This Policy does not cover (i) any premium, prepayment penalty or other accelerated payment, which at any time may become due on or with respect to any Class G-1 Certificate, (ii) shortfalls, if any, attributable to the liability of the Subordination Agent, the Class G-1 Trust or the Class G-1 Trustee for withholding taxes, if any (including interest and penalties in respect of any such liability) or (iii) any failure of the Subordination Agent or the Class G-1 Trustee to make any payment due to the Class G-1 Certificateholders or, if applicable, the holders of the Escrow Receipts from funds received.

 

Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Intercreditor Agreement (the “Agreement”), dated as of November 15, 2004, among MBIA, as Policy Provider, Wilmington Trust Company, as Trustee of the Trusts and Subordination Agent, Landesbank Baden-Württemberg, as Primary Liquidity Provider, and Citibank, N.A., as Above-Cap Liquidity Provider, without regard to any amendment or supplement thereto unless such amendment or supplement has been executed, or otherwise approved in writing, by MBIA.

 

Business Day” shall mean any day other than a Saturday, a Sunday or other day on which insurance companies in New York, New York or commercial banking institutions in the cities in which the corporate trust office of the Subordination Agent, the Fiscal Agent (as defined herein) or the office of MBIA specified in this Policy are located are authorized or obligated by law or executive order to close.

 

Class G-1 Certificateholder” shall mean any person who is the registered owner or beneficial owner of any of the Class G-1 Certificates and who, on the applicable Distribution Date, is entitled under the terms of the Class G-1 Certificates to payment thereunder.

 

Election Distribution Date” shall mean any Special Distribution Date established by the Subordination Agent upon 20 days’ notice to the Class G-1 Trustee and the Policy Provider by reason of the occurrence and continuation of a Policy Provider Default occurring after a Policy Provider Election.

 

Final Legal Distribution Date” shall mean February 15, 2018.

 

Insolvency Proceeding” means the commencement, after the date hereof, of any bankruptcy, insolvency, readjustment of debt, reorganization, marshalling of assets and liabilities or similar proceedings by or against JetBlue Airways Corporation or any Liquidity Provider and the commencement, after the date hereof, of any proceedings by JetBlue Airways Corporation or any Liquidity Provider, for the winding up or liquidation of its affairs or the consent, after the date hereof, to the appointment of a trustee, conservator, receiver, or liquidator in any bankruptcy, insolvency, readjustment of debt, reorganization, marshalling of assets and liabilities or similar proceedings of or relating to JetBlue Airways Corporation or any Liquidity Provider.

 

Insurance Agreement” shall mean the Insurance and Indemnity Agreement (as may be amended, modified or supplemented from time to time), dated as November 15, 2004, by

 

5



 

and among MBIA, JetBlue Airways Corporation, the Class G-1 Trustee, the Class G-2 Trustee and the Subordination Agent.

 

Insured Amounts” shall mean, with respect to any Distribution Date, the Deficiency Amount for such Distribution Date.

 

Net Principal Policy Amount” shall mean the Pool Balance of the Class G-1 Certificates as of the Closing Date minus all amounts previously drawn on this Policy with respect to principal.

 

Nonpayment” shall mean, with respect to any Distribution Date, a Deficiency Amount owing to the Subordination Agent for distribution to the Class G-1 Certificateholders or, if applicable, the holders of the Escrow Receipts in respect of such Distribution Date.

 

Notice of Avoided Payment” shall mean the notice, substantially in the form of Exhibit B hereto, delivered pursuant to this Policy and sent to the contact person at the address and/or fax number set forth in this Policy, and specifying the Avoidance Payment which shall be due and owing on the applicable Distribution Date.

 

Notice of Nonpayment” shall mean the notice, substantially in the form of Exhibit A hereto, delivered pursuant to this Policy and sent to the contact person at the address and/or fax numbers set forth in this Policy specifying the Insured Amount which shall be due and owing to the Class G-1 Trustee (or the Paying Agent) for distribution to the Class G-1 Certificateholders or, if applicable, the holders of the Escrow Receipts on the applicable Distribution Date.

 

Policy Provider Election” shall mean a notice given by MBIA when no Policy Provider Default shall have occurred and be continuing, stating that MBIA elects to make payments of Deficiency Amounts as defined under the proviso to clause (iii) of the definition of Deficiency Amount in respect of any Series G-1 Equipment Note in lieu of applying clause (iii) (without the proviso) of the definition of Deficiency Amount, which notice shall be given to the Subordination Agent not less than five (5) days prior to the Special Distribution Date established for payment of a Deficiency Amount under clause (iii) of the definition thereof.

 

Trust Agreement” shall mean the Pass Through Trust Agreement, Series 2004-2G-1, dated as of November 15, 2004, by and among JetBlue Airways Corporation, and Wilmington Trust Company, as Trustee, pursuant to which the Class G-1 Certificates have been issued.

 

Payment of amounts hereunder shall be made in immediately available funds (x) with respect to Deficiency Amounts no later than 3:00 p.m., New York City time, on the later of (a) the relevant Distribution Date and (b) the Business Day of presentation to U.S. Bank Trust National Association, as fiscal agent for MBIA or any successor fiscal agent appointed by MBIA (the “Fiscal Agent”), of a Notice of Nonpayment, appropriately completed and executed by the Beneficiary (if such Notice of Nonpayment is received by 1:00 p.m. on such day), and (y) with respect to Avoided Payments, prior to 3:00 p.m. New York City time, on the third Business Day following MBIA’s receipt of the documents required under clauses (x) through (z) of the third paragraph of this Policy.  Any such documents received by MBIA after 1:00 p.m. New York

 

6



 

City time on any Business Day or on any day that is not a Business Day shall be deemed to have been received by MBIA prior to 1:00 p.m. on the next succeeding Business Day.  All payments made by MBIA hereunder in respect of Avoided Payments will be made with MBIA’s own funds.  A Notice of Nonpayment or Notice of Avoided Payment under this Policy may be presented to the Fiscal Agent on any Business Day by (a) delivery of the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its address set forth below, or (b) facsimile transmission of the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its facsimile number set forth below.  If presentation is made by facsimile transmission, the Beneficiary shall (i) simultaneously confirm transmission by telephone to the Fiscal Agent at its telephone number set forth below, and (ii) as soon as reasonably practicable, deliver the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its address set forth below.  Each Notice of Nonpayment or Notice of Avoided Payment shall be delivered by facsimile and mail to MBIA simultaneously with its delivery to the Fiscal Agent.

 

If any Notice of Nonpayment or Notice of Avoided Payment received by the Fiscal Agent is not in proper form or is otherwise insufficient for the purpose of making a claim hereunder, it shall be deemed not to have been received by the Fiscal Agent, and MBIA or the Fiscal Agent, as the case may be, shall promptly so advise the Beneficiary, and the Beneficiary may submit an amended Notice of Nonpayment or Notice of Avoided Payment, as the case may be.

 

Payments due hereunder unless otherwise stated herein will be disbursed by the Fiscal Agent to the Subordination Agent for the benefit of the Class G-1 Certificateholders or, if applicable, the holders of the Escrow Receipts by wire transfer of immediately available funds in the amount of such payment.  Other than amounts payable in respect of Avoided Payments, MBIA’s obligations under this Policy shall be discharged to the extent funds to be applied to pay the Insured Obligations under and in accordance with the Agreement are received by the Subordination Agent (including funds disbursed by MBIA as provided in this Policy and received by the Subordination Agent) or the Paying Agent in accordance with the Escrow and Paying Agent Agreement for the Class G-1 Trust whether or not such funds are properly applied by the Subordination Agent, the Paying Agent or the Class G-1 Trustee.  MBIA’s obligations to make payments in respect of any Avoided Payments shall be discharged to the extent such payments are made by MBIA hereunder and are received by the Subordination Agent, the Class G-1 Trustee, the applicable Class G-1 Certificateholder or the receiver, conservator, debtor-in-possession or trustee in bankruptcy as applicable, whether or not such payments are properly applied by the Subordination Agent or the Class G-1 Trustee.

 

The Fiscal Agent is the agent of MBIA only, and the Fiscal Agent shall in no event be liable to Class G-1 Certificateholders for any acts of the Fiscal Agent or any failure of MBIA to deposit or cause to be deposited sufficient funds to make payments due under this Policy.

 

Any notice hereunder delivered to the Fiscal Agent of MBIA may be made at the address listed below for the Fiscal Agent of MBIA or such other address as MBIA shall specify in writing to the Subordination Agent.

 

7



 

The notice address of the Fiscal Agent is 100 Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate Trust Services, Facsimile: (212) 361-6159, Telephone: (212) 361-6153.

 

All notices, presentations, transmissions, deliveries and communications made by the Beneficiary to MBIA with respect to this Policy shall specifically refer to the number of this Policy and shall be made to MBIA at:

 

MBIA Insurance Corporation
113 King Street
Armonk, NY  10504
Attention:      Insured Portfolio Management,

Structured Finance

Telephone:    (914) 273-4545

Facsimile:      (914) 765-3810

 

or such other address, telephone number or facsimile number as MBIA may designate to the Beneficiary in writing from time to time.  Each such notice, presentation, transmission, delivery and communication shall be effective only upon actual receipt by MBIA.

 

To the extent and in the manner specified in the Agreement or the Escrow and Paying Agent Agreement for the Class G-1 Trust, MBIA shall be subrogated to the rights of each Class G-1 Certificateholder to receive payments under the Class G-1 Certificates and the Escrow Receipts to the extent of any payment made by it hereunder.

 

This Policy is neither transferable nor assignable, in whole or in part, except to a successor Subordination Agent duly appointed and qualified under the Agreement.  Such transfer and assignment shall be effective upon receipt by MBIA of a copy of the instrument effecting such transfer and assignment signed by the transferor and by the transferee, and a certificate, properly completed and signed by the transferor and the transferee, in the form of Exhibit C hereto (which shall be conclusive evidence of such transfer and assignment), and, in such case, the transferee instead of the transferor shall, without the necessity of further action, be entitled to all the benefits of and rights under this Policy in the transferor’s place, provided that, in such case, the Notice of Nonpayment presented hereunder shall be a certificate of the transferee and shall be signed by one who states therein that he is a duly authorized officer of the transferee.

 

There shall be no acceleration payment due under this Policy unless such acceleration is at the sole option of MBIA.

 

This Policy shall terminate and the obligations of MBIA hereunder shall be discharged on the day (the “Termination Date”) which is one year and one day following the Distribution Date upon which the Final Distribution on the Class G-1 Certificates is made.  The foregoing notwithstanding, if an Insolvency Proceeding is existing during the one year and one day period set forth above, then this Policy and MBIA’s obligations hereunder shall terminate on the later of (i) the date of the conclusion or dismissal of such Insolvency Proceeding without continuing jurisdiction by the court in such Insolvency Proceeding, and (ii) the date on which

 

8



 

MBIA has made all payments required to be made under the terms of this Policy in respect of Avoided Payments.

 

This Policy is not covered by the property/casualty insurance fund specified in Article Seventy-Six of the New York State insurance law.

 

This Policy sets forth in full the undertaking of MBIA, and, except as expressly provided in the Insurance Agreement and the Agreement, shall not be modified, altered or affected by any other agreement or instrument, including any modification or amendment to any other agreement or instrument, or by the merger, consolidation or dissolution of JetBlue Airways Corporation or any other Person and may not be canceled or revoked by MBIA prior to the time it is terminated in accordance with the express terms hereof.  The Premium on this Policy is not refundable for any reason.

 

This Policy shall be returned to MBIA upon termination.

 

THIS POLICY SHALL BE CONSTRUED, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

 

9



 

IN WITNESS WHEREOF, MBIA has caused this Policy to be duly executed on the date first written above.

 

 

MBIA INSURANCE CORPORATION

 

 

 

 

 

/s/ Neil G. Budnick

 

 

President

 

 

 

 

 

/s/ Adam M. Carta

 

 

Assistant Secretary

 

 

 



 

Exhibit A to Policy Number 45243

 

NOTICE OF NONPAYMENT AND DEMAND
FOR PAYMENT OF INSURED AMOUNTS

 

Date:       [                  ]

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:      Insured Portfolio Management,

Structured Finance

 

U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Services

 

Reference is made to Policy No. 45243, dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-1.  Terms capitalized herein and not otherwise defined shall have the meanings ascribed to such terms in or pursuant to the Policy unless the context otherwise requires.

 

The Subordination Agent hereby certifies as follows:

 

1.             The Subordination Agent is the trustee for the Class G-1 Trust under the Class G-1 Trust Agreement.

 

2.             The relevant Distribution Date is                  .  Such Distribution Date is a [Regular Distribution Date, a Special Distribution Date, an Election Distribution Date or the Final Legal Distribution Date].

 

[3.            Payment of accrued and unpaid interest on the Class G-1 Certificates and, without duplication, accrued and unpaid interest on any Deposit relating to the Escrow Receipts, in each case at the Stated Interest Rate on the outstanding Pool Balance of the Class G-1 Certificates accrued to the Distribution Date which is a Regular Distribution Date as determined pursuant to paragraph (i) of the definition of “Deficiency Amount” in the Policy is an amount equal to $                    .]

 

[3.            The amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (ii) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of a reduction in the outstanding Pool Balance of such Class G-1 Certificates and accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-1 Certificates is $                     .]

 

A-1



 

[3.            The Subordination Agent has not received a timely Policy Provider Election pursuant to the Policy and the amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (iii) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of the outstanding principal amount of the relevant Series G-1 Equipment Note(s) and accrued and unpaid interest accrued thereon at the Stated Interest Rate for the Class G-1 Certificates is $                 .]

 

[3.            The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy and the amount determined for payment to the Class G-1 Certificateholders pursuant to the provision in paragraph (iii)(A) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of scheduled principal (without regard to acceleration thereof) and interest at the Stated Interest Rate for the Class G-1 Certificates payable but not paid on the relevant Series G-1 Equipment Note during the twenty-one (21) month period referred to in such paragraph (iii) is $                 .]

 

[3.            The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy, no Election Distribution Date has been established pursuant to the Policy or Special Distribution Date established pursuant to clause (iv) of the definition of “Deficiency Amount” and the amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (iii)(B) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Regular Distribution Date in respect of scheduled principal (without regard to acceleration thereof) and interest payable at the Stated Interest Rate for the Class G-1 Certificates due on the Regular Distribution Date on the relevant Series G-1 Equipment Note is $                 .]

 

[3.            The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy, the Special Distribution Date related hereto is a Business Day elected by MBIA upon 20 days prior notice and the amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (iv) of the definition of “Deficiency Amount” in the Policy in respect of outstanding principal on such Series G-1 Equipment Note (less any drawings previously paid by MBIA in respect of principal on such Series G-1 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-1 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date is $                 .]

 

[3.            The amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (v) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is an Election Distribution Date in respect of the outstanding principal balance of the relevant Series G-1 Equipment Note (less any drawings previously paid by MBIA in respect of principal on such Series G-1 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-1 Certificates from the immediately preceding Regular Distribution Date to such Election Distribution Date is $                 .]

 

[3.            The amount determined for payment to the Class G-1 Certificateholders pursuant to paragraph (vi) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is the Final Legal Distribution Date in respect of payment in full of the

 

A-2



 

Final Distribution (other than any Additional Payments or other premium) on the Class G-1 Certificates is $                 .]

 

[3.            The amount determined for payment to the holders of the Escrow Receipts pursuant to paragraph (vi) of the definition of “Deficiency Amount” in the Policy on the Final Withdrawal Date is $                     .]

 

4.             The sum of $                          is the Insured Amount that is due.

 

5.             The Subordination Agent has not heretofore made a demand for the Insured Amount in respect of such Distribution Date.

 

6.             The Subordination Agent hereby requests payment of such Insured Amount that is due for payment be made by MBIA under the Policy and directs that payment under the Policy be made to the following account by bank wire transfer of federal or other immediately available funds in accordance with the terms of the Policy to:

 

[       ]
ABA #:  [           ]
Acct #:  [        ]
FBO:  [        ]
[Class G-1 Policy Account number]

 

7.             The Subordination Agent hereby agrees that, following receipt of the Insured Amount from MBIA, it shall (a) cause such funds to be deposited in the Class G-1 Policy Account and not permit such funds to be held in any other account, (b) either (i) cause such funds to be paid to the Class G-1 Trustee for distribution to the Class G-1 Certificateholders in reduction of the Pool Balance of, or interest on, the Class G-1 Certificates (as applicable) and not apply such funds for any other purpose or (ii) cause such funds to be paid to the Class G-1 Paying Agent for distribution to the holders of the Escrow Receipts in payment of accrued and unpaid interest on any Deposit related to the Escrow Receipts, or principal of the Escrow Receipts in each case in accordance with the terms of the Agreement and (c) maintain an accurate record of such payments with respect to the Class G-1 Certificates and Escrow Receipts the corresponding claim on the Policy and proceeds thereof.

 

 

WILMINGTON TRUST COMPANY,  as
Subordination Agent

 

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

A-3



 

Exhibit B to Policy Number 45243

 

NOTICE OF AVOIDED PAYMENT AND DEMAND
FOR PAYMENT OF AVOIDED PAYMENTS

 

Date:       [                        ]

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:      Insured Portfolio Management,

Structured Finance

 

U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Services

 

Reference is made to Policy No. 45243, dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-1.  Terms capitalized herein and not otherwise defined shall have the meanings ascribed to such terms in or pursuant to the Policy unless the context otherwise requires.

 

The Subordination Agent hereby certifies as follows:

 

1.             The Subordination Agent is the trustee for the Class G-1 Trustee under the Trust Agreement.

 

2.             The Subordination Agent has established                         as a Special Distribution Date pursuant to the Agreement for amounts claimed hereunder.

 

3.             A Final Order providing for the recovery of an Avoided Payment of $                          has been issued.

 

4.             $                        of the amount set forth in item No. 3 above has been paid by the [Class G-1 Certificateholder/Class G-1 Trustee/Subordination Agent] and $                        is required to be paid to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order.

 

5.             The [Class G-1 Certificateholder/Class G-1 Trustee/Subordination Agent] has not heretofore made a demand for such Avoided Payment.

 

6.             The [Class G-1 Certificateholder/Class G-1 Trustee/Subordination Agent] has delivered to MBIA or has attached hereto all documents required by the Policy to be delivered in connection with such Avoided Payment.

 

B-1



 

7.             The [Class G-1 Certificateholder/Class G-1 Trustee/Subordination Agent] hereby requests that payment of $                        of such Avoided Payment be made to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and $                        of such Avoided Payment be paid to the [Class G-1 Certificateholder] [Class G-1 Trustee] [Subordination Agent [for payment over to the Class G-1 Trustee] for distribution to the Class G-1 Certificateholder], in each case, by MBIA under the Policy and directs that payment under the Policy be made to the following account by bank wire transfer of federal or other immediately available funds in accordance with the terms of the Policy to:

 

For the portion to be paid to the receiver, conservator, debtor-in-possession or trustee, to                                  :

 

ABA #:  [          ]
Acct #:  [         ]
FBO:  [          ]

 

[relevant account number]

 

For the portion to be paid to the Subordination Agent:

 

ABA #:  [           ]
Acct #:  [         ]
FBO:  [         ]

 

[Class G-1 Policy Account Number]

 

 

[Name of Subordination Agent]

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

(Officer)

 

 

B-2



 

Exhibit C to Policy Number 45243

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:      Insured Portfolio Management, Structured Finance

 

Dear Sirs:

 

Reference is made to that certain Policy, Number 45243, dated November 15, 2004 (the “Policy”), which has been issued by MBIA Insurance Corporation in favor of the Subordination Agent with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-1.

 

The undersigned [Name of Transferor] has transferred and assigned (and hereby confirms to you said transfer and assignment) all of its rights in and under said Policy to [Name of Transferee] and confirms that [Name of Transferor] no longer has any rights under or interest in said Policy.

 

Transferor and Transferee have indicated on the face of said Policy that it has been transferred and assigned to Transferee.

 

Transferee hereby certifies that it is a duly authorized transferee under the terms of said Policy and is accordingly entitled, upon presentation of the document(s) called for therein, to receive payment thereunder.

 

 

 

 

 

 

[Name of Transferor]

 

 

 

 

 

 

By:

 

 

 

 

[Name and Title of Authorized Officer of
Transferor]

 

C-1



 

Exhibit D to Policy Number 45243

 

Form of Assignment

 

Reference is made to that certain Policy No. 45243, dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) relating to the JetBlue Airways Pass Through Certificates, Series 2004-2G-1.  Unless otherwise defined herein, capitalized terms used in this Assignment shall have the meanings assigned thereto in the Policy as incorporated by reference therein.  In connection with the Avoided Payment of [$              ] paid by the undersigned (the “[Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary]”) on [            ] and the payment by MBIA in respect of such Avoided Payment pursuant to the Policy, the [Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary] hereby irrevocably and unconditionally, without recourse, representation or warranty (except as provided below), sells, assigns, transfers, conveys and delivers to MBIA all of such [Class G-1 Certificateholder’s/Class G-1 Trustee’s/Beneficiary’s] rights, title and interest in and to any rights or claims, whether accrued, contingent or otherwise, which the [Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary] now has or may hereafter acquire, against any person relating to, arising out of or in connection with such Avoided Payment.  The [Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary] represents and warrants that such claims and rights are free and clear of any lien or encumbrance created or incurred by such [Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary].(1)

 

 

[Class G-1 Certificateholder/Class G-1
Trustee/Beneficiary]

 

 

 

 

 

 

 

 

By:

 

 

 

 

[Name and Title of Authorized Officer of
Transferor]

 


(1)           In the event that the terms of this form of assignment are reasonably determined to be insufficient solely as a result of a change of law or applicable rules after the date of the Policy to fully vest all of the [Class G-2 Certificateholder’s/Class G-2 Trustee’s/Beneficiary’s] right, title and interest in such rights and claims, the [Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary] and MBIA shall agree on such other form as is reasonably necessary to effect such assignment, which assignment shall be without recourse, representation or warranty except as provided above.

 

D-1


EX-4.23 25 a04-11378_4ex4d23.htm EX-4.23

Exhibit 4.23

 

MBIA INSURANCE CORPORATION

 

FINANCIAL GUARANTY INSURANCE POLICY

 

November 15, 2004

 

Policy No. 45256

 

Re:

JetBlue Airways Pass Through Trust 2004-2G-2 (the “Class G-2 Trust”) $185,418,000 Floating Rate JetBlue Airways Pass Through Certificates, Series 2004-2G-2 (the “Class G-2 Certificates”)

Insured Obligation:

Payment of interest at the Stated Interest Rate for the Class G-2 Certificates and, without duplication, any Deposit relating to the Escrow Receipts referred to below and principal on the Class G-2 Certificates.

Beneficiary:

Wilmington Trust Company, as subordination agent (together with any successor subordination agent duly appointed and qualified under the Agreement (as defined below), the “Subordination Agent”)

 

MBIA INSURANCE CORPORATION (“MBIA”), for consideration received, hereby unconditionally, absolutely and irrevocably and without the assertion of any defenses to payment, including fraud in the inducement or fact or any other circumstances (other than payment in full) that would have the effect of discharging a surety in law or in equity guarantees to the Subordination Agent, subject only to the terms of this Policy (the “Policy”), payment of the Insured Obligation.  MBIA agrees to pay to the Subordination Agent, in respect of each Distribution Date, an amount equal to (each a “Deficiency Amount”):

 

(i)                    with respect to any Regular Distribution Date other than the Final Legal Distribution Date, any shortfall in amounts available to the Subordination Agent (or, in the case of Escrow Receipts, the Paying Agent (as defined in the Escrow and Paying Agent Agreement for the Class G-2 Trust)), after giving effect to the subordination provisions of the Agreement and the application of any amounts available to the Paying Agent in the Class G-2 Paying Agent Account in respect of accrued interest at the Stated Interest Rate on the Class G-2 Deposits, any drawing paid under the Class G-2  Primary Liquidity Facility in respect of interest due on the Class G-2 Certificates on such Distribution Date and any withdrawal from the Class G-2 Primary Cash Collateral Account and the Class G-2 Above-Cap Account in respect of interest due on the Class G-2 Certificates on such Distribution Date in accordance with the Agreement, for the payment of accrued and unpaid interest on the Class G-2 Certificates and, without duplication, accrued and unpaid interest on any Deposit relating to the Escrow Receipts (as defined in and issued under the Escrow and Paying Agent Agreement for the Class G-2 Trust), in each case at the Stated Interest Rate for the Class G-2 Certificates on the Pool Balance of the Class G-2 Certificates on such Distribution Date;

 



 

(ii)                 with respect to any Special Distribution Date (other than an Election Distribution Date or a Special Distribution Date established pursuant to the succeeding clause (iv) below) established by reason of receipt of a Special Payment (other than a Special Payment arising from the purchase of any Series G-2 Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 of the Agreement) constituting the proceeds of any Series G-2 Equipment Notes (as to which there has been a default in the payment of principal thereof or that has been accelerated) or the related Collateral, as the case may be, any shortfall in the amounts available to the Subordination Agent after giving effect to the subordination provisions of the Agreement, the application of any amounts available to the Paying Agent in the Class G-2 Paying Agent Account in respect of accrued interest at the Stated Interest Rate on the Class G-2 Deposits and, if such Special Payment is received prior to a Policy Provider Election with respect to such Series G-2 Equipment Note, any drawing paid under the Class G-2 Primary Liquidity Facility in respect of interest due on the Class G-2 Certificates on such Distribution Date and any withdrawal from the Class G-2 Primary Cash Collateral Account and the Class G-2 Above-Cap Account in respect of interest due on the Class G-2 Certificates on such Distribution Date in accordance with the Agreement, required to reduce the Pool Balance of the Class G-2 Certificates by an amount equal to the outstanding principal amount of such Series G-2 Equipment Note (determined immediately prior to the receipt of such proceeds and less the amount of any drawings previously paid by MBIA in respect of principal on such Series G-2 Equipment Note) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-2 Certificates for the period from the immediately preceding Regular Distribution Date to such Special Distribution Date; provided, however, that, notwithstanding anything to the contrary herein, the purchase of any Series G-2 Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 of the Agreement shall not result in a “Deficiency Amount” under this clause (ii) that is payable by MBIA under this paragraph regardless of whether or not the proceeds of such purchase, together with any other available funds, are sufficient to reduce the Pool Balance of the Class G-2 Certificates by an amount equal to the outstanding principal amount of such Series G-2 Equipment Notes (determined immediately prior to the receipt of such proceeds and less the amount of any drawings previously paid by MBIA in respect of principal on such Series G-2 Equipment Notes) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-2 Certificates from the period from the immediately preceding Regular Distribution Date to such Special Distribution Date;

 

(iii)     with respect to the Special Distribution Date established by reason of the failure of the Subordination Agent or the Class G-2 Trustee, as the case may be, to have received a Special Payment constituting the proceeds of any Series G-2 Equipment Note or the related Collateral (including, without limitation, proceeds received in connection with the purchase by any or all of the Class C Certificateholders of any Series G-2 Equipment Note pursuant to Section 2.7 of the Agreement) during the twenty-one (21) month period beginning on the last date on which full payment was made on such Series G-2 Equipment Note (the date of such payment in full, the “Last Payment Date”) as to which there has been a failure to pay principal or that has been accelerated subsequent to the Last Payment Date, the amount equal to the outstanding principal amount of such

 

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Series G-2 Equipment Note plus accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-2 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date; provided, however, if MBIA shall have duly given a Policy Provider Election (as defined below) with respect to such Series G-2 Equipment Note at the end of such twenty-one (21) month period and at least five (5) days prior to such Special Distribution Date, the Deficiency Amount shall be an amount equal to (A) with respect to such Special Distribution Date, the scheduled principal and interest payable but not paid on such Series G-2 Equipment Note (without regard to the acceleration thereof) during such twenty-one (21) month period (after giving effect to the application of any drawing paid under the Class G-2 Primary Liquidity Facility and any withdrawal from the Class G-2 Primary Cash Collateral Account and the Class G-2 Above-Cap Account attributable to such interest on such Series G-2 Equipment Note) and (B) thereafter, on each Regular Distribution Date following such Special Distribution Date as to which a Policy Provider Election has been given in respect of such Series G-2 Equipment Note, and prior to the establishment of an Election Distribution Date or a Special Distribution Date pursuant to the immediately succeeding clause (iv) with respect to such Series G-2 Equipment Note, an amount equal to the scheduled principal (without regard to the acceleration thereof) and interest payable on such Series G-2 Equipment Note on the related payment date;

 

(iv)             following the giving of any Policy Provider Election, with respect to any Business Day elected by MBIA upon twenty (20) days prior notice (which shall be a Special Distribution Date) and upon request by MBIA to the Subordination Agent to make a drawing under this Policy, an amount equal to the then outstanding principal balance of the Series G-2 Equipment Note as to which the Policy Provider Election was given (less any drawings previously paid by MBIA in respect of principal on such Series G-2 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-2 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date;

 

(v)                with respect to any Special Distribution Date which is an Election Distribution Date, an amount equal to the then outstanding principal balance of the Series G-2 Equipment Note as to which such Election Distribution Date relates (less any drawing previously paid by MBIA in respect of principal of such Series G-2 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-2 Certificates from the immediately preceding Regular Distribution Date to such Election Distribution Date; and

 

(vi)             with respect to the Final Legal Distribution Date, any shortfalls in amounts available to the Subordination Agent after giving effect to the subordination provisions of the Agreement and to the application of any amounts available to the Escrow Agent in the Class G-2 Paying Agent Account in respect of accrued interest on the Class G-2 Deposits, any drawing paid under the Class G-2 Primary Liquidity Facility in respect of interest included in the Final Distribution and any withdrawal from the Class G-2 Primary Cash Collateral Account and the Class G-2 Above-Cap Account in respect of interest included in the Final Distribution in accordance with the Agreement, for the payment in full of the Final Distribution (calculated as of such date but excluding any

 

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accrued and unpaid Additional Payments or other premium) on the Class G-2 Certificates or, in the case that the full principal amount of the Class G-2 Deposit relating to the Escrow Receipts is not used to purchase the Class G-2 Equipment Notes, then with respect to the Final Withdrawal Date (as defined in the Escrow and Paying Agent Agreement for the Class G-2 Trust), any shortfall in amounts available to the Paying Agent for the payment in full of unpaid principal amount of the Escrow Receipts.

 

For the avoidance of doubt, no Deficiency Amount described in clauses (i)-(vi) above or payment to be made in respect of an Avoided Payment described below shall constitute an accelerated or acceleration payment.

 

If any amount paid or required to be paid in respect of the Insured Obligation is voided (a “Preference Event”) under any applicable bankruptcy, insolvency, receivership or similar law in an Insolvency Proceeding, and, as a result of such a Preference Event, the Beneficiary, the Class G-2 Trustee or any Class G-2 Certificateholder is required to return such voided payment, or any portion of such voided payment made or to be made in respect of the Class G-2 Certificates (including any disgorgement from the Class G-2 Certificateholders resulting from any such Insolvency Proceeding, whether such disgorgement is determined on a theory of preferential conveyance or otherwise) (an “Avoided Payment”), MBIA will pay an amount equal to each such Avoided Payment, irrevocably, absolutely and unconditionally and without the assertion of any defenses to payment, including fraud in inducement or fact or any other circumstances that would have the effect of discharging a surety in law or in equity, upon receipt by MBIA from the Beneficiary, the Class G-2 Trustee or such Class G-2 Certificateholder of (x) a certified copy of a final (non-appealable) order of a court exercising jurisdiction in such Insolvency Proceeding to the effect that the Beneficiary, the Class G-2 Trustee or such Class G-2 Certificateholder is required to return any such payment or portion thereof because such payment was voided under applicable law, with respect to which order the appeal period has expired without an appeal having been filed (the “Final Order”), (y) an assignment, in the form of Exhibit D hereto, irrevocably assigning to MBIA all rights and claims of such Beneficiary, the Class G-2 Trustee or such Class G-2 Certificateholder relating to or arising under such Avoided Payment and (z) a Notice of Avoided Payment in the form of Exhibit B hereto appropriately completed and executed by the Beneficiary, the Class G-2 Trustee or such Class G-2 Certificateholder.  Such payment shall be disbursed to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and not to the Beneficiary, the Class G-2 Trustee or such Class G-2 Certificateholder directly unless such Beneficiary, Class G-2 Trustee or Class G-2 Certificateholder has returned such payment to such receiver, conservator, debtor-in-possession or trustee in bankruptcy, in which case such payment shall be disbursed to such Class G-2 Certificateholder, the Class G-2 Trustee or the Beneficiary, as the case may be.

 

Notwithstanding the foregoing, in no event shall MBIA be obligated to make any payment in respect of any Avoided Payment, which payment represents a payment of the principal amount of the Class G-2 Certificates, prior to the time MBIA would have been required to make a payment in respect of such principal pursuant to sub-paragraphs (ii)-(vi) of the definition of Deficiency Amount in this Policy; provided, further, that no payment of principal under this Policy on any Distribution Date, other than with respect to an Avoided Payment, shall exceed the Net Principal Policy Amount (as defined below) for such Distribution Date; provided,

 

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further, that no payment, other than with respect to an Avoided Payment, of a Deficiency Amount shall be in excess of the then outstanding Pool Balance of the Class G-2 Certificates and accrued and unpaid interest thereon at the Stated Interest Rate on the Class G-2 Certificates.  This Policy does not cover (i) any premium, prepayment penalty or other accelerated payment, which at any time may become due on or with respect to any Class G-2 Certificate, (ii) shortfalls, if any, attributable to the liability of the Subordination Agent, the Class G-2 Trust or the Class G-2 Trustee for withholding taxes, if any (including interest and penalties in respect of any such liability) or (iii) any failure of the Subordination Agent or the Class G-2 Trustee to make any payment due to the Class G-2 Certificateholders or, if applicable, the holders of the Escrow Receipts from funds received.

 

Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Intercreditor Agreement (the “Agreement”), dated as of November 15, 2004, among MBIA, as Policy Provider, Wilmington Trust Company, as Trustee of the Trusts and Subordination Agent, Landesbank Baden-Württemberg, as Primary Liquidity Provider, and Citibank, N.A., as Above-Cap Liquidity Provider, without regard to any amendment or supplement thereto unless such amendment or supplement has been executed, or otherwise approved in writing, by MBIA.

 

Business Day” shall mean any day other than a Saturday, a Sunday or other day on which insurance companies in New York, New York or commercial banking institutions in the cities in which the corporate trust office of the Subordination Agent, the Fiscal Agent (as defined herein) or the office of MBIA specified in this Policy are located are authorized or obligated by law or executive order to close.

 

Class G-2 Certificateholder” shall mean any person who is the registered owner or beneficial owner of any of the Class G-2 Certificates and who, on the applicable Distribution Date, is entitled under the terms of the Class G-2 Certificates to payment thereunder.

 

Election Distribution Date” shall mean any Special Distribution Date established by the Subordination Agent upon 20 days’ notice to the Class G-2 Trustee and the Policy Provider by reason of the occurrence and continuation of a Policy Provider Default occurring after a Policy Provider Election.

 

Final Legal Distribution Date” shall mean May 15, 2018.

 

Insolvency Proceeding” means the commencement, after the date hereof, of any bankruptcy, insolvency, readjustment of debt, reorganization, marshalling of assets and liabilities or similar proceedings by or against JetBlue Airways Corporation or any Liquidity Provider and the commencement, after the date hereof, of any proceedings by JetBlue Airways Corporation or any Liquidity Provider, for the winding up or liquidation of its affairs or the consent, after the date hereof, to the appointment of a trustee, conservator, receiver, or liquidator in any bankruptcy, insolvency, readjustment of debt, reorganization, marshalling of assets and liabilities or similar proceedings of or relating to JetBlue Airways Corporation or any Liquidity Provider.

 

Insurance Agreement” shall mean the Insurance and Indemnity Agreement (as may be amended, modified or supplemented from time to time), dated as November 15, 2004, by

 

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and among MBIA, JetBlue Airways Corporation, the Class G-1 Trustee, the Class G-2 Trustee and the Subordination Agent.

 

Insured Amounts” shall mean, with respect to any Distribution Date, the Deficiency Amount for such Distribution Date.

 

Net Principal Policy Amount” shall mean the Pool Balance of the Class G-2 Certificates as of the Closing Date minus all amounts previously drawn on this Policy with respect to principal.

 

Nonpayment” shall mean, with respect to any Distribution Date, a Deficiency Amount owing to the Subordination Agent for distribution to the Class G-2 Certificateholders or, if applicable, the holders of the Escrow Receipts in respect of such Distribution Date.

 

Notice of Avoided Payment” shall mean the notice, substantially in the form of Exhibit B hereto, delivered pursuant to this Policy and sent to the contact person at the address and/or fax number set forth in this Policy, and specifying the Avoidance Payment which shall be due and owing on the applicable Distribution Date.

 

Notice of Nonpayment” shall mean the notice, substantially in the form of Exhibit A hereto, delivered pursuant to this Policy and sent to the contact person at the address and/or fax numbers set forth in this Policy specifying the Insured Amount which shall be due and owing to the Class G-2 Trustee (or the Paying Agent) for distribution to the Class G-2 Certificateholders or, if applicable, the holders of the Escrow Receipts on the applicable Distribution Date.

 

Policy Provider Election” shall mean a notice given by MBIA when no Policy Provider Default shall have occurred and be continuing, stating that MBIA elects to make payments of Deficiency Amounts as defined under the proviso to clause (iii) of the definition of Deficiency Amount in respect of any Series G-2 Equipment Note in lieu of applying clause (iii) (without the proviso) of the definition of Deficiency Amount, which notice shall be given to the Subordination Agent not less than five (5) days prior to the Special Distribution Date established for payment of a Deficiency Amount under clause (iii) of the definition thereof.

 

Trust Agreement” shall mean the Pass Through Trust Agreement, Series 2004-2G-2, dated as of November 15, 2004, by and among JetBlue Airways Corporation, and Wilmington Trust Company, as Trustee, pursuant to which the Class G-2 Certificates have been issued.

 

Payment of amounts hereunder shall be made in immediately available funds (x) with respect to Deficiency Amounts no later than 3:00 p.m., New York City time, on the later of (a) the relevant Distribution Date and (b) the Business Day of presentation to U.S. Bank Trust National Association, as fiscal agent for MBIA or any successor fiscal agent appointed by MBIA (the “Fiscal Agent”), of a Notice of Nonpayment, appropriately completed and executed by the Beneficiary (if such Notice of Nonpayment is received by 1:00 p.m. on such day), and (y) with respect to Avoided Payments, prior to 3:00 p.m. New York City time, on the third Business Day following MBIA’s receipt of the documents required under clauses (x) through (z) of the third paragraph of this Policy.  Any such documents received by MBIA after 1:00 p.m. New York

 

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City time on any Business Day or on any day that is not a Business Day shall be deemed to have been received by MBIA prior to 1:00 p.m. on the next succeeding Business Day.  All payments made by MBIA hereunder in respect of Avoided Payments will be made with MBIA’s own funds.  A Notice of Nonpayment or Notice of Avoided Payment under this Policy may be presented to the Fiscal Agent on any Business Day by (a) delivery of the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its address set forth below, or (b) facsimile transmission of the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its facsimile number set forth below.  If presentation is made by facsimile transmission, the Beneficiary shall (i) simultaneously confirm transmission by telephone to the Fiscal Agent at its telephone number set forth below, and (ii) as soon as reasonably practicable, deliver the original Notice of Nonpayment or Notice of Avoided Payment to the Fiscal Agent at its address set forth below.  Each Notice of Nonpayment or Notice of Avoided Payment shall be delivered by facsimile and mail to MBIA simultaneously with its delivery to the Fiscal Agent.

 

If any Notice of Nonpayment or Notice of Avoided Payment received by the Fiscal Agent is not in proper form or is otherwise insufficient for the purpose of making a claim hereunder, it shall be deemed not to have been received by the Fiscal Agent, and MBIA or the Fiscal Agent, as the case may be, shall promptly so advise the Beneficiary, and the Beneficiary may submit an amended Notice of Nonpayment or Notice of Avoided Payment, as the case may be.

 

Payments due hereunder unless otherwise stated herein will be disbursed by the Fiscal Agent to the Subordination Agent for the benefit of the Class G-2 Certificateholders or, if applicable, the holders of the Escrow Receipts by wire transfer of immediately available funds in the amount of such payment.  Other than amounts payable in respect of Avoided Payments, MBIA’s obligations under this Policy shall be discharged to the extent funds to be applied to pay the Insured Obligations under and in accordance with the Agreement are received by the Subordination Agent (including funds disbursed by MBIA as provided in this Policy and received by the Subordination Agent) or the Paying Agent in accordance with the Escrow and Paying Agent Agreement for the Class G-2 Trust whether or not such funds are properly applied by the Subordination Agent, the Paying Agent or the Class G-2 Trustee.  MBIA’s obligations to make payments in respect of any Avoided Payments shall be discharged to the extent such payments are made by MBIA hereunder and are received by the Subordination Agent, the Class G-2 Trustee, the applicable Class G-2 Certificateholder or the receiver, conservator, debtor-in-possession or trustee in bankruptcy as applicable, whether or not such payments are properly applied by the Subordination Agent or the Class G-2 Trustee.

 

The Fiscal Agent is the agent of MBIA only, and the Fiscal Agent shall in no event be liable to Class G-2 Certificateholders for any acts of the Fiscal Agent or any failure of MBIA to deposit or cause to be deposited sufficient funds to make payments due under this Policy.

 

Any notice hereunder delivered to the Fiscal Agent of MBIA may be made at the address listed below for the Fiscal Agent of MBIA or such other address as MBIA shall specify in writing to the Subordination Agent.

 

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The notice address of the Fiscal Agent is 100 Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate Trust Services, Facsimile: (212) 361-6159, Telephone: (212) 361-6153.

 

All notices, presentations, transmissions, deliveries and communications made by the Beneficiary to MBIA with respect to this Policy shall specifically refer to the number of this Policy and shall be made to MBIA at:

 

MBIA Insurance Corporation
113 King Street
Armonk, NY  10504
Attention:
                 Insured Portfolio Management,

Structured Finance

Telephone:            (914) 273-4545
Facsimile:
                    (914) 765-3810

 

or such other address, telephone number or facsimile number as MBIA may designate to the Beneficiary in writing from time to time.  Each such notice, presentation, transmission, delivery and communication shall be effective only upon actual receipt by MBIA.

 

To the extent and in the manner specified in the Agreement or the Escrow and Paying Agent Agreement for the Class G-2 Trust, MBIA shall be subrogated to the rights of each Class G-2 Certificateholder to receive payments under the Class G-2 Certificates and the Escrow Receipts to the extent of any payment made by it hereunder.

 

This Policy is neither transferable nor assignable, in whole or in part, except to a successor Subordination Agent duly appointed and qualified under the Agreement.  Such transfer and assignment shall be effective upon receipt by MBIA of a copy of the instrument effecting such transfer and assignment signed by the transferor and by the transferee, and a certificate, properly completed and signed by the transferor and the transferee, in the form of Exhibit C hereto (which shall be conclusive evidence of such transfer and assignment), and, in such case, the transferee instead of the transferor shall, without the necessity of further action, be entitled to all the benefits of and rights under this Policy in the transferor’s place, provided that, in such case, the Notice of Nonpayment presented hereunder shall be a certificate of the transferee and shall be signed by one who states therein that he is a duly authorized officer of the transferee.

 

There shall be no acceleration payment due under this Policy unless such acceleration is at the sole option of MBIA.

 

This Policy shall terminate and the obligations of MBIA hereunder shall be discharged on the day (the “Termination Date”) which is one year and one day following the Distribution Date upon which the Final Distribution on the Class G-2 Certificates is made.  The foregoing notwithstanding, if an Insolvency Proceeding is existing during the one year and one day period set forth above, then this Policy and MBIA’s obligations hereunder shall terminate on the later of (i) the date of the conclusion or dismissal of such Insolvency Proceeding without continuing jurisdiction by the court in such Insolvency Proceeding, and (ii) the date on which

 

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MBIA has made all payments required to be made under the terms of this Policy in respect of Avoided Payments.

 

This Policy is not covered by the property/casualty insurance fund specified in Article Seventy-Six of the New York State insurance law.

 

This Policy sets forth in full the undertaking of MBIA, and, except as expressly provided in the Insurance Agreement and the Agreement, shall not be modified, altered or affected by any other agreement or instrument, including any modification or amendment to any other agreement or instrument, or by the merger, consolidation or dissolution of JetBlue Airways Corporation or any other Person and may not be canceled or revoked by MBIA prior to the time it is terminated in accordance with the express terms hereof.  The Premium on this Policy is not refundable for any reason.

 

This Policy shall be returned to MBIA upon termination.

 

THIS POLICY SHALL BE CONSTRUED, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.

 

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IN WITNESS WHEREOF, MBIA has caused this Policy to be duly executed on the date first written above.

 

 

MBIA INSURANCE CORPORATION

 

 

 

 

 

/s/ Neil G. Budnick

 

 

President

 

 

 

 

 

/s/ Adam M. Carta

 

 

Assistant Secretary

 



 

Exhibit A to Policy Number 45256

 

NOTICE OF NONPAYMENT AND DEMAND
FOR PAYMENT OF INSURED AMOUNTS

 

Date:                    [                 ]

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:
                 Insured Portfolio Management,

Structured Finance

 

U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Services

 

Reference is made to Policy No. 45256  , dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-2.  Terms capitalized herein and not otherwise defined shall have the meanings ascribed to such terms in or pursuant to the Policy unless the context otherwise requires.

 

The Subordination Agent hereby certifies as follows:

 

1.                                       The Subordination Agent is the trustee for the Class G-2 Trust under the Class G-2 Trust Agreement.

 

2.                                       The relevant Distribution Date is                   .  Such Distribution Date is a [Regular Distribution Date, a Special Distribution Date, an Election Distribution Date or the Final Legal Distribution Date].

 

[3.                                   Payment of accrued and unpaid interest on the Class G-2 Certificates and, without duplication, accrued and unpaid interest on any Deposit relating to the Escrow Receipts, in each case at the Stated Interest Rate on the outstanding Pool Balance of the Class G-2 Certificates accrued to the Distribution Date which is a Regular Distribution Date as determined pursuant to paragraph (i) of the definition of “Deficiency Amount” in the Policy is an amount equal to $                       .]

 

[3.                                   The amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (ii) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of a reduction in the outstanding Pool Balance of such Class G-2 Certificates and accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G-2 Certificates is $                       .]

 

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[3.                                   The Subordination Agent has not received a timely Policy Provider Election pursuant to the Policy and the amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (iii) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of the outstanding principal amount of the relevant Series G-2 Equipment Note(s) and accrued and unpaid interest accrued thereon at the Stated Interest Rate for the Class G-2 Certificates is $                .]

 

[3.                                   The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy and the amount determined for payment to the Class G-2 Certificateholders pursuant to the provision in paragraph (iii)(A) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Special Distribution Date in respect of scheduled principal (without regard to acceleration thereof) and interest at the Stated Interest Rate for the Class G-2 Certificates payable but not paid on the relevant Series G-2 Equipment Note during the twenty-one (21) month period referred to in such paragraph (iii) is $              .]

 

[3.                                   The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy, no Election Distribution Date has been established pursuant to the Policy or Special Distribution Date established pursuant to clause (iv) of the definition of “Deficiency Amount” and the amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (iii)(B) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is a Regular Distribution Date in respect of scheduled principal (without regard to acceleration thereof) and interest payable at the Stated Interest Rate for the Class G-2 Certificates due on the Regular Distribution Date on the relevant Series G-2 Equipment Note is $                 .]

 

[3.                                   The Subordination Agent has received a timely Policy Provider Election pursuant to the Policy, the Special Distribution Date related hereto is a Business Day elected by MBIA upon 20 days prior notice and the amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (iv) of the definition of “Deficiency Amount” in the Policy in respect of outstanding principal on such Series G-2 Equipment Note (less any drawings previously paid by MBIA in respect of principal on such Series G-2 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-2 Certificates from the immediately preceding Regular Distribution Date to such Special Distribution Date is $                 .]

 

[3.                                   The amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (v) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is an Election Distribution Date in respect of the outstanding principal balance of the relevant Series G-2 Equipment Note (less any drawings previously paid by MBIA in respect of principal on such Series G-2 Equipment Note) and accrued and unpaid interest thereon at the Stated Interest Rate for the Class G-2 Certificates from the immediately preceding Regular Distribution Date to such Election Distribution Date is $                 .]

 

[3.                                   The amount determined for payment to the Class G-2 Certificateholders pursuant to paragraph (vi) of the definition of “Deficiency Amount” in the Policy on the Distribution Date which is the Final Legal Distribution Date in respect of payment in full of the

 

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Final Distribution (other than any Additional Payments or other premium) on the Class G-2 Certificates is $                   .]

 

[3.                                   The amount determined for payment to the holders of the Escrow Receipts pursuant to paragraph (vi) of the definition of “Deficiency Amount” in the Policy on the Final Withdrawal Date is $                       .]

 

4.                                       The sum of $                               is the Insured Amount that is due.

 

5.                                       The Subordination Agent has not heretofore made a demand for the Insured Amount in respect of such Distribution Date.

 

6.                                       The Subordination Agent hereby requests payment of such Insured Amount that is due for payment be made by MBIA under the Policy and directs that payment under the Policy be made to the following account by bank wire transfer of federal or other immediately available funds in accordance with the terms of the Policy to:

 

[       ]
ABA #:  [           ]
Acct #:  [          ]
FBO:  [           ]
[Class G-2 Policy Account number]

 

7.                                       The Subordination Agent hereby agrees that, following receipt of the Insured Amount from MBIA, it shall (a) cause such funds to be deposited in the Class G-2 Policy Account and not permit such funds to be held in any other account, (b) either (i) cause such funds to be paid to the Class G-2 Trustee for distribution to the Class G-2 Certificateholders in reduction of the Pool Balance of, or interest on, the Class G-2 Certificates (as applicable) and not apply such funds for any other purpose or (ii) cause such funds to be paid to the Class G-2 Paying Agent for distribution to the holders of the Escrow Receipts in payment of accrued and unpaid interest on any Deposit related to the Escrow Receipts, or principal of the Escrow Receipts in each case in accordance with the terms of the Agreement and (c) maintain an accurate record of such payments with respect to the Class G-2 Certificates and Escrow Receipts the corresponding claim on the Policy and proceeds thereof.

 

 

WILMINGTON TRUST COMPANY, as
Subordination Agent

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

Title:

 

A-3



 

Exhibit B to Policy Number 45256

 

NOTICE OF AVOIDED PAYMENT AND DEMAND
FOR PAYMENT OF AVOIDED PAYMENTS

 

Date:                    [                       ]

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:
                 Insured Portfolio Management,

Structured Finance

 

U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Services

 

Reference is made to Policy No. 45256  , dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-2.  Terms capitalized herein and not otherwise defined shall have the meanings ascribed to such terms in or pursuant to the Policy unless the context otherwise requires.

 

The Subordination Agent hereby certifies as follows:

 

1.                                       The Subordination Agent is the trustee for the Class G-2 Trustee under the Trust Agreement.

 

2.                                       The Subordination Agent has established                             as a Special Distribution Date pursuant to the Agreement for amounts claimed hereunder.

 

3.                                       A Final Order providing for the recovery of an Avoided Payment of $                              has been issued.

 

4.                                       $                            of the amount set forth in item No. 3 above has been paid by the [Class G-2 Certificateholder/Class G-2 Trustee/Subordination Agent] and $                          is required to be paid to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order.

 

5.                                       The [Class G-2 Certificateholder/Class G-2 Trustee/Subordination Agent] has not heretofore made a demand for such Avoided Payment.

 

6.                                       The [Class G-2 Certificateholder/Class G-2 Trustee/Subordination Agent] has delivered to MBIA or has attached hereto all documents required by the Policy to be delivered in connection with such Avoided Payment.

 

B-1



 

7.                                       The [Class G-2 Certificateholder/Class G-2 Trustee/Subordination Agent] hereby requests that payment of $                        of such Avoided Payment be made to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and $                        of such Avoided Payment be paid to the [Class G-2 Certificateholder] [Class G-2 Trustee] [Subordination Agent [for payment over to the Class G-2 Trustee] for distribution to the Class G-2 Certificateholder], in each case, by MBIA under the Policy and directs that payment under the Policy be made to the following account by bank wire transfer of federal or other immediately available funds in accordance with the terms of the Policy to:

 

For the portion to be paid to the receiver, conservator, debtor-in-possession or trustee, to                             :

 

ABA #:  [           ]
Acct #:  [          ]
FBO:  [          ]

 

[relevant account number]

 

For the portion to be paid to the Subordination Agent:

 

ABA #:  [           ]
Acct #:  [           ]
FBO:  [           ]

 

[Class G-2 Policy Account Number]

 

 

[Name of Subordination Agent]

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

(Officer)

 

 

B-2



 

Exhibit C to Policy Number 45256

 

MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention:
                 Insured Portfolio Management, Structured Finance

 

Dear Sirs:

 

Reference is made to that certain Policy, Number 45256  , dated November 15, 2004 (the “Policy”), which has been issued by MBIA Insurance Corporation in favor of the Subordination Agent with respect to the JetBlue Airways Pass Through Certificates, Series 2004-2G-2.

 

The undersigned [Name of Transferor] has transferred and assigned (and hereby confirms to you said transfer and assignment) all of its rights in and under said Policy to [Name of Transferee] and confirms that [Name of Transferor] no longer has any rights under or interest in said Policy.

 

Transferor and Transferee have indicated on the face of said Policy that it has been transferred and assigned to Transferee.

 

Transferee hereby certifies that it is a duly authorized transferee under the terms of said Policy and is accordingly entitled, upon presentation of the document(s) called for therein, to receive payment thereunder.

 

 

 

 

 

 

[Name of Transferor]

 

 

 

 

 

By:

 

 

 

[Name and Title of Authorized Officer of
Transferor]

 

C-1



 

Exhibit D to Policy Number 45256

 

Form of Assignment

 

Reference is made to that certain Policy No. 45256  , dated November 15, 2004 (the “Policy”), issued by MBIA Insurance Corporation (“MBIA”) relating to the JetBlue Airways Pass Through Certificates, Series 2004-2G-2.  Unless otherwise defined herein, capitalized terms used in this Assignment shall have the meanings assigned thereto in the Policy as incorporated by reference therein.  In connection with the Avoided Payment of [$              ] paid by the undersigned (the “[Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary]”) on [         ] and the payment by MBIA in respect of such Avoided Payment pursuant to the Policy, the [Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary] hereby irrevocably and unconditionally, without recourse, representation or warranty (except as provided below), sells, assigns, transfers, conveys and delivers to MBIA all of such [Class G-2 Certificateholder’s/Class G-2 Trustee’s/Beneficiary’s] rights, title and interest in and to any rights or claims, whether accrued, contingent or otherwise, which the [Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary] now has or may hereafter acquire, against any person relating to, arising out of or in connection with such Avoided Payment.  The [Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary] represents and warrants that such claims and rights are free and clear of any lien or encumbrance created or incurred by such [Class G-2 Certificateholder/Class G-2 Trustee/Beneficiary].(1)

 

 

[Class G-2 Certificateholder/Class G-2
Trustee/Beneficiary]

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

 

 

 

 


(1)                                  In the event that the terms of this form of assignment are reasonably determined to be insufficient solely as a result of a change of law or applicable rules after the date of the Policy to fully vest all of the [Class G-1 Certificateholder’s/Class G-1 Trustee’s/Beneficiary’s] right, title and interest in such rights and claims, the [Class G-1 Certificateholder/Class G-1 Trustee/Beneficiary] and MBIA shall agree on such other form as is reasonably necessary to effect such assignment, which assignment shall be without recourse, representation or warranty except as provided above.

 

D-1


 

EX-4.24 26 a04-11378_4ex4d24.htm EX-4.24

Exhibit 4.24

 

EXECUTION COPY

 

INTERCREDITOR AGREEMENT

(2004-2)

 

dated as of November 15, 2004

 

among

 

WILMINGTON TRUST COMPANY,

not in its individual capacity

but solely as Trustee under the

JetBlue Airways Pass Through Trust 2004-2G-1,

JetBlue Airways Pass Through Trust 2004-2G-2

and

JetBlue Airways Pass Through Trust 2004-2C

 

LANDESBANK BADEN-WÜRTTEMBERG,

as Class G-1 Primary Liquidity Provider, Class G-2 Primary Liquidity Provider and as Class C
Primary Liquidity Provider

 

CITIBANK, N.A.,

as Class G-1 Above-Cap Liquidity Provider, Class G-2 Above-Cap Liquidity Provider and as
Class C Above-Cap Liquidity Provider

 

MBIA INSURANCE CORPORATION,

as Policy Provider

 

and

 

WILMINGTON TRUST COMPANY,

not in its individual capacity except

as expressly set forth herein but

solely as Subordination Agent and Trustee

 



 

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS

 

Section 1.1.

Definitions

 

 

 

 

ARTICLE II

TRUST ACCOUNTS; CONTROLLING PARTY

 

Section 2.1.

Agreement to Terms of Subordination; Payments from Monies Received Only

 

Section 2.2.

Trust Accounts

 

Section 2.3.

Deposits to the Collection Account and Special Payments Account

 

Section 2.4.

Distributions of Special Payments

 

Section 2.5.

Designated Representatives

 

Section 2.6.

Controlling Party

 

Section 2.7.

Buy Out Right

 

 

 

 

ARTICLE III

RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED

 

Section 3.1.

Written Notice of Distribution

 

Section 3.2.

Distribution of Amounts on Deposit in the Collection Account

 

Section 3.3.

[Intentionally Omitted]

 

Section 3.4.

Other Payments

 

Section 3.5.

Payments to the Trustees, Primary Liquidity Providers and Policy Provider

 

Section 3.6.

Liquidity Facilities

 

Section 3.7.

The Policies

 

 

 

 

ARTICLE IV

EXERCISE OF REMEDIES

 

Section 4.1.

Directions from the Controlling Party

 

Section 4.2.

Remedies Cumulative

 

Section 4.3.

Discontinuance of Proceedings

 

Section 4.4.

Right of Certificateholders to Receive Payments Not to Be Impaired

 

Section 4.5.

Undertaking for Costs

 

 

 

 

ARTICLE V

DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES, ETC

 

Section 5.1.

Notice of Indenture Default, Indenture Event of Default or Triggering Event

 

Section 5.2.

Indemnification

 

Section 5.3.

No Duties Except as Specified in Intercreditor Agreement

 

Section 5.4.

Notice from the Liquidity Providers and Trustees

 

Section 5.5.

Agreements Relating to the Above-Cap Liquidity Facility

 

 

 

 

ARTICLE VI

THE SUBORDINATION AGENT

 

Section 6.1.

Authorization; Acceptance of Trusts and Duties

 

 

i



 

Section 6.2.

Absence of Duties

 

Section 6.3.

No Representations or Warranties as to Documents

 

Section 6.4.

No Segregation of Monies; No Interest

 

Section 6.5.

Reliance; Agents; Advice of Counsel

 

Section 6.6.

Capacity in Which Acting

 

Section 6.7.

Compensation

 

Section 6.8.

[Intentionally Omitted.]

 

Section 6.9.

Subordination Agent Required; Eligibility

 

Section 6.10.

Money to Be Held in Trust

 

 

 

 

ARTICLE VII

INDEMNIFICATION OF SUBORDINATION AGENT

 

Section 7.1.

Scope of Indemnification

 

 

 

 

ARTICLE VIII

SUCCESSOR SUBORDINATION AGENT

 

Section 8.1.

Replacement of Subordination Agent; Appointment of Successor

 

 

 

 

ARTICLE IX

SUPPLEMENTS AND AMENDMENTS

 

Section 9.1.

Amendments, Waivers, Etc

 

Section 9.2.

Subordination Agent Protected

 

Section 9.3.

Effect of Supplemental Agreements

 

Section 9.4.

Notice and Information to Rating Agencies

 

 

 

 

ARTICLE X

MISCELLANEOUS

 

Section 10.1.

Termination of Intercreditor Agreement

 

Section 10.2.

Intercreditor Agreement for Benefit of Trustees, Liquidity Providers, the Policy Provider and Subordination Agent

 

Section 10.3.

Notices

 

Section 10.4.

Severability

 

Section 10.5.

No Oral Modifications or Continuing Waivers

 

Section 10.6.

Successors and Assigns

 

Section 10.7.

Headings

 

Section 10.8.

Counterpart Form

 

Section 10.9.

Subordination

 

Section 10.10.

Governing Law

 

Section 10.11.

Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity

 

 

 

 

Schedule 2.02(b)

Specified Investments Instructions

 

Exhibit A

Trustee Reports

 

 

ii



 

INTERCREDITOR AGREEMENT

 

INTERCREDITOR AGREEMENT dated as of November 15, 2004, among WILMINGTON TRUST COMPANY, a Delaware banking corporation (“WTC”), not in its individual capacity but solely as Trustee of each Trust (each as defined below); LANDESBANK BADEN WÜRTTEMBERG, a bank established in Germany as a public law institution with legal capacity (Rechtfähige Anstalt des Öffentlichen Rechts) (“LBBW”), as Class G-1 Primary Liquidity Provider, Class G-2 Primary Liquidity Provider and Class C Primary Liquidity Provider; CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America (“Citibank”), as Class G-1 Above-Cap Liquidity Provider, Class G-2 Above-Cap Liquidity Provider and Class C Above-Cap Liquidity Provider; MBIA INSURANCE CORPORATION, a New York stock insurance company, as Policy Provider; and WILMINGTON TRUST COMPANY, not in its individual capacity except as expressly set forth herein, but solely as Subordination Agent and trustee hereunder (in such capacity, together with any successor appointed pursuant to Article VIII hereof, the “Subordination Agent”).

 

WHEREAS, all capitalized terms used herein shall have the respective meanings referred to in Article I hereof;

 

WHEREAS, pursuant to each Indenture JetBlue will issue on a recourse basis three series of Equipment Notes to finance or refinance the purchase of each Aircraft;

 

WHEREAS, pursuant to the Financing Agreements, each Trust will acquire Equipment Notes having an interest rate equal to the interest rate applicable to the Certificates to be issued by such Trust;

 

WHEREAS, pursuant to each Trust Agreement, the Trust created thereby proposes to issue a single class of Certificates (a “Class”) bearing the interest rate and having the final distribution date described in such Trust Agreement on the terms and subject to the conditions set forth therein;

 

WHEREAS, pursuant to the Underwriting Agreement, the Underwriters propose to purchase the Certificates issued by each Trust in the aggregate face amount set forth opposite the name of such Trust on Schedule I thereto on the terms and subject to the conditions set forth therein;

 

WHEREAS, the Primary Liquidity Provider proposes to enter into three separate revolving credit agreements and the Above-Cap Liquidity Provider proposes to enter into three separate irrevocable interest rate cap agreements, in each case, with the Subordination Agent, as agent for the Trustee of the Class G-1 Trust, Class G-2 Trust and the Class C Trust, respectively, for the benefit of the Certificateholders of each such Trust;

 

WHEREAS, the Policy Provider proposes to enter into the Policy Provider Agreement providing for the issuance by the Policy Provider of two separate Policies for the benefit of the Class G-1 Certificateholders and Class G-2 Certificateholders; and

 



 

WHEREAS, it is a condition precedent to the obligations of the Underwriters under the Underwriting Agreement that the Subordination Agent, the Trustees, the Liquidity Providers and the Policy Provider agree to the terms of subordination set forth in this Agreement in respect of each Class of Certificates, and the Subordination Agent, the Trustees, the Liquidity Providers and the Policy Provider, by entering into this Agreement, hereby acknowledge and agree to such terms of subordination and the other provisions of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1.                                Definitions.  For all purposes of this Agreement (and all schedules or exhibits hereto), except as otherwise expressly provided or unless the context otherwise requires:

 

(1)                                  the terms used herein that are defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

 

(2)                                  all references in this Agreement to designated “Articles”, “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Agreement;

 

(3)                                  the words “herein”, “hereof’ and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; and

 

(4)                                  the term “including” shall mean “including without limitation”.

 

Above-Cap Account” means the Class G-1 Above-Cap Account, the Class G-2 Above-Cap Account or the Class C Above-Cap Account, as applicable.

 

Above-Cap Liquidity Facility” means the Class G-1 Above-Cap Liquidity Facility, the Class G-2 Above-Cap Liquidity Facility or the Class C Above-Cap Liquidity Facility, as applicable.

 

Above-Cap Liquidity Provider” means the Class G-1 Above-Cap Liquidity Provider, the Class G-2 Above-Cap Liquidity Provider or the Class C Above-Cap Liquidity Provider, as applicable.

 

Above-Cap Payment” has the meaning as specified in Section 3.6(a).

 

Above-Cap Reserve Account” means the Class G-1 Above-Cap Reserve Account, the Class G-2 Above-Cap Reserve Account or the Class C Above-Cap Reserve Account, as applicable.

 

2



 

Above-Cap Withdrawal” has the meaning specified in Section 3.6(a).

 

Acceleration” means, with respect to the amounts payable in respect of the Equipment Notes issued under any Indenture, such amounts becoming immediately due and payable by declaration or otherwise.  “Accelerate”, “Accelerated” and “Accelerating” have meanings correlative to the foregoing.

 

Accrued Class G-1 Interest” means, with respect to any Distribution Date, all amounts due and owing in respect of accrued and unpaid interest on the Class G-1 Certificates at the Stated Interest Rate for the Class G-1 Certificates on such Distribution Date.

 

Accrued Class G-2 Interest” means, with respect to any Distribution Date, all amounts due and owing in respect of accrued and unpaid interest on the Class G-2 Certificates at the Stated Interest Rate for the Class G-2 Certificates on such Distribution Date.

 

Actual Disposition Event” means, in respect of any Equipment Note, (i) the disposition of the Collateral (as defined in the Indenture pursuant to which such Equipment Note was issued), (ii) the occurrence of the mandatory redemption date for such Equipment Note following an Event of Loss with respect to the Aircraft which secured such Equipment Note or (iii) the sale of such Equipment Note.

 

Additional Payment” means any Break Amount (as such term is defined in the applicable Indentures) and/or Prepayment Premium (as such term is defined in the applicable Indentures) in respect of the Equipment Notes.

 

Adjusted Interest” means, as of any Current Distribution Date, (I) any interest described in clause (II) of this definition accruing prior to the immediately preceding Distribution Date which remains unpaid and (II) interest at the Stated Interest Rate for the Class C Certificates (A) for the number of days during the period commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, the Closing Date) and ending on, but excluding the Current Distribution Date, on the Preferred C Pool Balance on such Current Distribution Date and (B) on the principal amount calculated pursuant to clauses (i), (ii), (iii) and (iv) of the definition of Preferred C Pool Balance for each Series C Equipment Note with respect to which a disposition, distribution, sale or Deemed Disposition Event has occurred since the immediately preceding Distribution Date, for each day during the period, for each such Equipment Note, commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, the Closing Date) and ending on, but excluding the date of disposition, distribution, sale or Deemed Disposition Event with respect to such Equipment Note, Aircraft or Collateral, as the case may be.

 

Advance”, with respect to any Primary Liquidity Facility, means any Advance as defined in such Primary Liquidity Facility.

 

Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.  For the purposes of this definition, “control”, when used with respect to any specified Person, means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person

 

3



 

whether through the ownership of voting securities or by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Aircraft” means, with respect to each Indenture, the “Aircraft” referred to therein.

 

Appraisal” has the meaning assigned to such term in Section 4.1(a)(ii).

 

Appraised Current Market Value” of any Aircraft means the lower of the average and the median of the three most recent Post-Default Appraisals of such Aircraft.

 

Appraisers” means Aircraft Information Services, Inc., AvSolutions, Inc., Morten Beyer and Agnew, Inc., Aviation Specialists Group, Inc. and Airclaims Group Limited or, so long as the Person entitled or required hereunder to select such Appraisers acts reasonably, any other nationally recognized appraiser reasonably acceptable to the Subordination Agent and the Controlling Party.

 

Assignment and Assumption Agreements” means each of the Assignment and Assumption Agreements to be executed between a Trustee and trustee of the relevant Successor Trust in accordance with the relevant Trust Agreement, as the same may be amended, modified or supplemented from time to time.

 

Available Amount” means, with respect to any Primary Liquidity Facility on any drawing date, the “Maximum Available Commitment” as defined in such Primary Liquidity Facility.

 

Avoided Payment” has the meaning assigned to such term in the Policy.

 

Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq.

 

Break Amount”, with respect to any Equipment Note, has the meaning assigned to such term in the Indenture related to such Equipment Note.

 

Business Day” means any day (a) other than a Saturday or Sunday or a day (i) on which commercial banks are required or authorized to close in New York, New York, or, so long as any Certificate is outstanding, the city and state in the United States in which any Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds and (ii) for purposes of each Policy and the Policy Provider, on which the fiscal agent under the Policy, at its office specified in such Policy, the Policy Provider at its office specified in the Policy and insurance companies in New York, New York are required or authorized by law or executive order to close and (b) solely with respect to draws under any Primary Liquidity Facility, which is also a “Business Day” as defined in such Primary Liquidity Facility.

 

Capped Interest Rate” means (i) with respect to the Class G-1 Certificates, 7.375% per annum, (ii) with respect to the Class G-2 Certificates, 7.450% per annum, and (iii) with respect to the Class C Certificates, 10.100% per annum.

 

4



 

Capped Three-Month LIBOR” means, at any time, 7% per annum.

 

Cash Collateral Account” means the Class G-1 Primary Cash Collateral Account, the Class G-2 Primary Cash Collateral Account, the Class C Primary Cash Collateral Account, the Class G-1 Above-Cap Reserve Account, the Class G-2 Above-Cap Reserve Account or the Class C Above-Cap Reserve Account, as applicable.

 

Certificate” means a Class G-1 Certificate, a Class G-2 Certificate or a Class C Certificate, as applicable.

 

Certificateholder” means any holder of one or more Certificates.

 

Class” has the meaning assigned to such term in the preliminary statements to this Agreement.

 

Class C Above-Cap Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class C Above-Cap Liquidity Facility pursuant to Section 3.6(a) shall be deposited.

 

Class C Above-Cap Liquidity Facility” means, initially, the ISDA Master Agreement, dated as of November 15, 2004, between the Subordination Agent, as agent and trustee for the Class C Trust, and the initial Class C Above-Cap Liquidity Provider, together with the Schedule and Confirmation attached thereto, relating to the Class C Certificates, and, from and after replacement of such ISDA Master Agreement pursuant hereto, the Replacement Above-Cap Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class C Above-Cap Liquidity Provider” means Citibank or any Replacement Above-Cap Liquidity Provider which has issued a Replacement Above-Cap Liquidity Facility to replace the Class C Above-Cap Liquidity Facility pursuant to Section 3.6(c)(ii).

 

Class C Above-Cap Reserve Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class C Above-Cap Liquidity Facility pursuant to Section 3.6(f) shall be deposited.

 

Class C Certificateholder” means, at any time, any holder of one or more Class C Certificates.

 

Class C Certificates” means the certificates issued by the Class C Trust, substantially in the form of Exhibit A to the Class C Trust Agreement, and authenticated by the Class C Trustee, representing fractional undivided interests in the Class C Trust, and any certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class C Trust Agreement.

 

Class C Deposits” means the Deposits with respect to the Class C Certificates.

 

5



 

Class C Paying Agent Account” means the Paying Agent Account as defined in the Escrow and Paying Agent Agreement relating to the Class C Certificates.

 

Class C Primary Cash Collateral Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts drawn under the Class C Primary Liquidity Facility pursuant to Section 3.6(c), 3.6(d), 3.6(i) or 3.6(k) shall be deposited.

 

Class C Primary Liquidity Facility” means, initially, the Revolving Credit Agreement dated as of the date hereof, between the Subordination Agent, as agent and trustee for the Class C Trustee, and the initial Class C Primary Liquidity Provider, and, from and after the replacement of such Agreement pursuant hereto, the Replacement Primary Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class C Primary Liquidity Provider” means LBBW together with any Replacement Primary Liquidity Provider which has issued a Replacement Primary Liquidity Facility to replace any Class C Primary Liquidity Facility pursuant to Section 3.6(e).

 

Class C Trust” means (i) prior to the Transfer, the JetBlue Airways Pass Through Trust 2004-2C-O created and administered pursuant to the Class C Trust Agreement and (ii) after the Transfer, the JetBlue Airways Pass Through Trust 2004-2C-S created and administered pursuant to the Class C Trust Agreement.

 

Class C Trust Agreement” means (i) prior to the Transfer, the Pass Through Trust Agreement, dated as of the date hereof, between JetBlue and the Class C Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2C-O and the issuance of the Class C Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after the Transfer, the Pass Through Trust Agreement entered into between JetBlue and the Class C Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2C-S and the issuance of the Class C Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class C Trustee” means WTC, not in its individual capacity except as expressly set forth in the Class C Trust Agreement, but solely as trustee under the Class C Trust Agreement, together with any successor trustee appointed pursuant thereto.

 

Class G-1 Above-Cap Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class G-1 Above-Cap Liquidity Facility pursuant to Section 3.6(a) shall be deposited.

 

Class G-1 Above-Cap Liquidity Facility” means, initially, the ISDA Master Agreement, dated as of November 15, 2004, between the Subordination Agent, as agent and trustee for the Class G-1 Trust, and the initial Class G-1 Above-Cap Liquidity Provider, together with the Schedule and Confirmation attached thereto, relating to the Class G-1 Certificates, and, from and after replacement of such ISDA Master Agreement pursuant hereto, the Replacement

 

6



 

Above-Cap Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-1 Above-Cap Liquidity Provider” means Citibank or any Replacement Above-Cap Liquidity Provider which has issued a Replacement Above-Cap Liquidity Facility to replace the Class G-1 Above-Cap Liquidity Facility pursuant to Section 3.6(c)(ii).

 

Class G-1 Above-Cap Reserve Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class G-1 Above-Cap Liquidity Facility pursuant to Section 3.6(f) shall be deposited.

 

Class G-1 Certificateholder” means, at any time, any holder of one or more Class G-1 Certificates.

 

Class G-1 Certificates” means the certificates issued by the Class G-1 Trust, substantially in the form of Exhibit A to the Class G-1 Trust Agreement, and authenticated by the Class G-1 Trustee, representing fractional undivided interests in the Class G-1 Trust, and any certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class G-1 Trust Agreement.

 

Class G-1 Deposits” means the Deposits with respect to the Class G-1 Certificates.

 

Class G-1 Paying Agent Account” means the Paying Agent Account as defined in the Escrow and Paying Agent Agreement relating to the Class G-1 Certificates.

 

Class G-1 Policy” means the MBIA Insurance Corporation Financial Guaranty Insurance Policy No. 45243, together with the endorsements thereto, issued as of the Closing Date in favor of the Subordination Agent for the benefit of the Class G-1 Certificateholders, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-1 Policy Account” means the Eligible Deposit Account established by the Subordination Agent pursuant to Section 2.2(a)(iii)(x) into which amounts will be deposited pursuant to Section 3.7.

 

Class G-1 Primary Cash Collateral Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts drawn under the Class G-1 Primary Liquidity Facility pursuant to Section 3.6(c), 3.6(d), 3.6(i) or 3.6(k) shall be deposited.

 

Class G-1 Primary Liquidity Facility” means, initially, the Revolving Credit Agreement dated as of the date hereof, between the Subordination Agent, as agent and trustee for the Class G-1 Trustee, and the initial Class G-1 Primary Liquidity Provider, and, from and after the replacement of such Agreement pursuant hereto, the Replacement Primary Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

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Class G-1 Primary Liquidity Provider” means LBBW, together with any Replacement Primary Liquidity Provider which has issued a Replacement Primary Liquidity Facility to replace any Class G-1 Primary Liquidity Facility pursuant to Section 3.6(e).

 

Class G-1 Trust” means (i) prior to the Transfer, the JetBlue Airways Pass Through Trust 2004-2G-1-O created and administered pursuant to the Class G-1 Trust Agreement and (ii) after the Transfer, the JetBlue Airways Pass Through Trust 2004-2G-1-S created and administered pursuant to the Class G-1 Trust Agreement.

 

Class G-1 Trust Agreement” means (i) prior to the Transfer, the Pass Through Trust Agreement, dated as of the date hereof, between JetBlue and the Class G-1 Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2G-1-O and the issuance of the Class G-1 Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after the Transfer, the Pass Through Trust Agreement entered into between JetBlue and the Class G-1 Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2G-1-S and the issuance of the Class G-1 Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-1 Trustee” means WTC, not in its individual capacity except as expressly set forth in the Class G-1 Trust Agreement, but solely as trustee under the Class G-1 Trust Agreement, together with any successor trustee appointed pursuant thereto.

 

Class G-2 Above-Cap Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class G-2 Above-Cap Liquidity Facility pursuant to Section 3.6(a) shall be deposited.

 

Class G-2 Above-Cap Liquidity Facility” means, initially, the ISDA Master Agreement, dated as of November 15, 2004, between the Subordination Agent, as agent and trustee for the Class G-2 Trust, and the initial Class G-2 Above-Cap Liquidity Provider, together with the Schedule and Confirmation attached thereto, relating to the Class G-2 Certificates, and, from and after replacement of such ISDA Master Agreement pursuant hereto, the Replacement Above-Cap Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-2 Above-Cap Liquidity Provider” means Citibank or any Replacement Above-Cap Liquidity Provider which has issued a Replacement Above-Cap Liquidity Facility to replace the Class G-2 Above-Cap Liquidity Facility pursuant to Section 3.6(c)(ii).

 

Class G-2 Above-Cap Reserve Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts paid under the Class G-2 Above-Cap Liquidity Facility pursuant to Section 3.6(f) shall be deposited.

 

Class G-2 Certificateholder” means, at any time, any holder of one or more Class G-2 Certificates.

 

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Class G-2 Certificates” means the certificates issued by the Class G-2 Trust, substantially in the form of Exhibit A to the Class G-2 Trust Agreement, and authenticated by the Class G-2 Trustee, representing fractional undivided interests in the Class G-2 Trust, and any certificates issued in exchange therefor or replacement thereof pursuant to the terms of the Class G-2 Trust Agreement.

 

Class G-2 Deposits” means the Deposits with respect to the Class G-2 Certificates.

 

Class G-2 Paying Agent Account” means the Paying Agent Account as defined in the Escrow and Paying Agent Agreement relating to the Class G-2 Certificates.

 

Class G-2 Policy” means the MBIA Insurance Corporation Financial Guaranty Insurance Policy No. 45256, together with the endorsements thereto, issued as of the Closing Date in favor of the Subordination Agent for the benefit of the Class G-2 Certificateholders, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-2 Policy Account” means the Eligible Deposit Account established by the Subordination Agent pursuant to Section 2.2(a)(iii)(y) into which amounts will be deposited pursuant to Section 3.7.

 

Class G-2 Primary Cash Collateral Account” means an Eligible Deposit Account in the name of the Subordination Agent maintained at an Eligible Institution, which shall be the Subordination Agent if it shall so qualify, into which all amounts drawn under the Class G-2 Primary Liquidity Facility pursuant to Section 3.6(c), 3.6(d), 3.6(i) or 3.6(k) shall be deposited.

 

Class G-2 Primary Liquidity Facility” means, initially, the Revolving Credit Agreement dated as of the date hereof, between the Subordination Agent, as agent and trustee for the Class G-2 Trustee, and the initial Class G-2 Primary Liquidity Provider, and, from and after the replacement of such Agreement pursuant hereto, the Replacement Primary Liquidity Facility therefor, if any, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-2 Primary Liquidity Provider” means LBBW, together with any Replacement Primary Liquidity Provider which has issued a Replacement Primary Liquidity Facility to replace any Class G-2 Primary Liquidity Facility pursuant to Section 3.6(e).

 

Class G-2 Trust” means (i) prior to the Transfer, the JetBlue Airways Pass Through Trust 2004-2G-2-O created and administered pursuant to the Class G-2 Trust Agreement and (ii) after the Transfer, the JetBlue Airways Pass Through Trust 2004-2G-2-S created and administered pursuant to the Class G Trust Agreement.

 

Class G-2 Trust Agreement” means (i) prior to the Transfer, the Pass Through Trust Agreement, dated as of the date hereof, between JetBlue and the Class G-2 Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2G-2-O and the issuance of the Class G-2 Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, and (ii) after the Transfer, the Pass Through Trust Agreement entered into between JetBlue and the Class G-2 Trustee, governing the creation and administration of the JetBlue Airways Pass Through Trust 2004-2G-2-S and the

 

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issuance of the Class G-2 Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Class G-2 Trustee” means WTC, not in its individual capacity except as expressly set forth in the Class G-2 Trust Agreement, but solely as trustee under the Class G-2 Trust Agreement, together with any successor trustee appointed pursuant thereto.

 

Closing Date” means November 15, 2004.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated thereunder.

 

Collateral” has the meaning assigned to such term in the Indentures.

 

Collection Account” means the Eligible Deposit Account established by the Subordination Agent pursuant to Section 2.2 which the Subordination Agent shall make deposits in and withdrawals from in accordance with this Agreement.

 

Consent Period” has the meaning assigned to such term in Section 3.6(d).

 

Controlling Party” means the Person entitled to act as such pursuant to the terms of Section 2.6.

 

Corporate Trust Office” means, with respect to any Trustee, the Subordination Agent or any Loan Trustee, the office of such Person in the city at which, at any particular time, its corporate trust business shall be principally administered.

 

Current Distribution Date” means a Distribution Date specified as a reference date for calculating the Expected Distributions with respect to the Certificates of any Trust as of such Distribution Date.

 

Deemed Disposition Event” means, in respect of any Equipment Note, the continuation of an Indenture Event of Default in respect of such Equipment Note without an Actual Disposition Event occurring in respect of such Equipment Note for a period of five years from the date of the occurrence of such Indenture Event of Default.

 

Deficiency Amount” has the meaning assigned to such term in Section 3.6(a).

 

Delivery Period Expiry Date” means the earlier of (a) February 28, 2006, or, if the Equipment Notes relating to all the Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased by the Trusts on or prior to such date due to any reason beyond the control of JetBlue and not occasioned by JetBlue’s fault or negligence, May 31, 2006 and (b) the date on which Equipment Notes with respect to all Aircraft (or Substitute Aircraft in lieu thereof) have been purchased by the Trusts in accordance with the Note Purchase Agreement.

 

Deposit Agreement” shall mean, with respect to any Class, the Deposit Agreement pertaining to such Class dated as of the date hereof between the Escrow Agent and the

 

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Depositary, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch, a New York State licensed branch office of a Landesbank organized under the laws of Germany, as depositary under each Deposit Agreement, or its successors and assigns.

 

Deposits” with respect to any Class, shall have the meaning set forth in the Deposit Agreement pertaining to such Class.

 

Designated Representatives” means the Subordination Agent Representatives, the Trustee Representatives and the Provider Representatives identified under Section 2.5.

 

Disposition” has the meaning assigned to such term in Section 3.7(c).

 

Disposition Payment” has the meaning assigned to such term in Section 3.7(b).

 

Distribution Date” means a Regular Distribution Date or a Special Distribution Date.

 

Dollars” or “$” means United States dollars.

 

Downgrade Drawing” has the meaning assigned to such term in Section 3.6(c).

 

Downgrade Event” has the meaning assigned to such term in each Liquidity Facility.

 

Downgraded Facility” has the meaning assigned to such term in Section 3.6(c).

 

Drawing” means an Interest Drawing, a Final Drawing, a Non-Extension Drawing, a Special Termination Drawing or a Downgrade Drawing, as the case may be.

 

Election Distribution Date” has the meaning assigned to such term in Section 3.7(c).

 

Election Interest Payment” has the meaning ascribed to such term in Section 3.7(c).

 

Eligible Deposit Account” means either (a) a segregated account with an Eligible Institution or (b) a segregated trust account with the corporate trust department of a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any U.S. branch of a foreign bank), having corporate trust powers and acting as trustee for funds deposited in such account, so long as any of the securities of such depository institution has a long-term unsecured debt rating from each Rating Agency of at least A-3 or its equivalent.  An Eligible Deposit Account may be maintained with a Primary Liquidity Provider so long as such Primary Liquidity Provider is an Eligible Institution; provided that such Primary Liquidity Provider shall have waived all rights of set-off and counterclaim with respect to such account.

 

Eligible Institution” means (a) the corporate trust department of the Subordination Agent or any Trustee, as applicable, or (b) a depository institution organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any

 

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U.S. branch of a foreign bank), which has a long-term unsecured debt rating from each Rating Agency of at least A-3 or its equivalent.

 

Eligible Investments” means (a) investments in obligations of, or guaranteed by, the United States Government having maturities no later than 90 days following the date of such investment, (b) investments in open market commercial paper of any corporation incorporated under the laws of the United States of America or any state thereof with a short-term unsecured debt rating issued by Moody’s and short-term issuer credit rating by Standard & Poor’s of at least P-1 and A-1, respectively, having maturities no later than 90 days following the date of such investment or (c) investments in negotiable certificates of deposit, time deposits, banker’s acceptances, commercial paper or other direct obligations of, or obligations guaranteed by, commercial banks organized under the laws of the United States or of any political subdivision thereof (or any U.S. branch of a foreign bank) with short-term unsecured debt ratings and short-term issuer credit ratings of at least P-1 by Moody’s and A-1 by Standard & Poor’s, having maturities no later than 90 days following the date of such investment; provided, however, that (x) all Eligible Investments that are bank obligations shall be denominated in U.S. dollars; and (y) the aggregate amount of Eligible Investments at any one time that are bank obligations issued by any one bank shall not be in excess of 5% of such bank’s capital surplus; provided further that (1) any investment of the types described in clauses (a), (b) and (c) above may be made through a repurchase agreement in commercially reasonable form with a bank or other financial institution qualifying as an Eligible Institution so long as such investment is held by a third party custodian also qualifying as an Eligible Institution, and (2) all such investments set forth in clause (a), (b) or (c) above mature (i) with respect to investments of Scheduled Payments, no later than the Business Day immediately preceding the next Regular Distribution Date and (ii) with respect to investments of Special Payments, no later than the Business Day immediately preceding the Special Distribution Date for such Special Payments; provided further, however, that in the case of any Eligible Investment issued by a domestic branch of a foreign bank, the income from such investment shall be from sources within the United States for purposes of the Code.  Notwithstanding the foregoing, no investment of the types described in clause (b) above which is issued or guaranteed by JetBlue or any of its Affiliates, and no investment in the obligations of any one bank in excess of $10,000,000, shall be an Eligible Investment unless written approval has been obtained from the Policy Provider and a Ratings Confirmation shall have been received with respect to the making of such investment.

 

Equipment Notes” means, at any time, the Series G-1 Equipment Notes, Series G-2 Equipment Notes and the Series C Equipment Notes, collectively, and in each case, any Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of the Indentures.

 

Escrow Agent” means WTC, as escrow agent under each Escrow and Paying Agent Agreement, together with its successors in such capacity.

 

Escrow and Paying Agent Agreement” shall mean, with respect to any Class, the Escrow and Paying Agent Agreement pertaining to such Class dated as of the date hereof between the Escrow Agent, the Underwriters, the Trustee for such Class and the Paying Agent, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.

 

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Escrow Receipts” has the meaning assigned to such term in the Escrow and Paying Agent Agreement for the Trusts.

 

Excess Interest Policy Drawing” has the meaning assigned to such term in Section 3.7(c).

 

Excess Reimbursement Obligations” means, (a) in the event of any Policy Provider Election, the portion of the Policy Provider Obligations that represents interest on the Series G-1 Equipment Notes or Series G-2 Equipment Notes in respect of which the Policy Provider Election has been made in excess of 21 months of interest at the interest rate applicable to such Equipment Note, (b) any interest on the Liquidity Obligations in respect of the Class G-1 Primary Liquidity Facility and Class G-2 Primary Liquidity Facility paid by the Policy Provider to the Primary Liquidity Provider from and after the end of the 21-month period referred to in Section 3.7(c) hereof and (c) interest on Policy Drawings as set forth in the Policy Provider Agreement (other than any such interest that constitutes a Policy Provider Obligation).

 

Expected Distributions” means, with respect to the Certificates of any Trust on any Current Distribution Date, the difference between (A) the Pool Balance of such Certificates as of the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, the original aggregate face amount of the Certificates of such Trust), and (B) the Pool Balance of such Certificates as of the Current Distribution Date calculated on the basis that (i) the principal of the Non-Performing Equipment Notes held in such Trust has been paid in full and such payments have been distributed to the holders of such Certificates, (ii) the principal of the Performing Equipment Notes held in such Trust has been paid when due (without giving effect to any Acceleration of Performing Equipment Notes) and such payments have been distributed to the holders of such Certificates and (iii) the principal of any Equipment Notes formerly held in such Trust that have been sold pursuant to the terms hereof has been paid in full and such payments have been distributed to the holders of such Certificates, but without giving effect to any reduction in the Pool Balance as a result of any distribution attributable to Deposits occurring after the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, occurring after the initial issuance of the Certificates of such Trust).  For purposes of calculating Expected Distributions with respect to the Certificates of any Trust, any Additional Payment paid on the Equipment Notes held in such Trust which has not been distributed to the Certificateholders of such Trust (other than such Additional Payment or a portion thereof applied to the payment of interest on the Certificates of such Trust or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Expected Distributions.

 

Expiry Date” with respect to any Primary Liquidity Facility, shall have the meaning set forth in such Primary Liquidity Facility.

 

Fee Letter” means the Fee Letter dated as of the date hereof among JetBlue, LBBW and the Subordination Agent with respect to the initial Primary Liquidity Facilities and any fee letter entered into among JetBlue, the Subordination Agent and any Replacement Primary Liquidity Provider.

 

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Final Distributions” means, with respect to the Certificates of any Trust on any Distribution Date, the sum of (x) the aggregate amount of all accrued and unpaid interest on such Certificates (excluding interest, if any, payable with respect to the Deposits relating to such Trust) and (y) the Pool Balance of such Certificates as of the immediately preceding Distribution Date (less the amount of the Deposits for such Class of Certificates as of such preceding Distribution Date other than any portion of such Deposits thereafter used to acquire Equipment Notes pursuant to the Note Purchase Agreement).  For purposes of calculating Final Distributions with respect to the Certificates of any Trust, any Additional Payment paid on the Equipment Notes held in such Trust which has not been distributed to the Certificateholders of such Trust (other than such Additional Payment or a portion thereof applied to the payment of interest on the Certificates of such Trust or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Final Distributions.

 

Final Drawing” has the meaning assigned to such term in Section 3.6(i).

 

Final Legal Distribution Date” means (i) with respect to the Class G-1 Certificates, February 15, 2018, (ii) with respect to the Class G-2 Certificates, May 15, 2018 and (iii) with respect to the Class C Certificates, May 15. 2010.

 

Final Order” has the meaning assigned to such term in the Policy.

 

Financing Agreement” means each of the Participation Agreements and the Note Purchase Agreement.

 

Indenture” means each of the Trust Indentures entered into by the Loan Trustee and JetBlue pursuant to the Note Purchase Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Indenture Default” means, with respect to any Indenture, any Default (as such term is defined in such Indenture) thereunder.

 

Indenture Event of Default” means, with respect to any Indenture, any Event of Default (as such term is defined in such Indenture) thereunder.

 

Individual Drawn Percentage” means, as of any date, with respect to an Interest Drawing under a Primary Liquidity Facility or a withdrawal from a Primary Cash Collateral Account pursuant to Section 3.6(f)(i)(A), (ii)(A) or (iii)(A), a fraction (x) the numerator of which is the outstanding amount of such Interest Drawing or such withdrawal as of such date and (y) the denominator of which is the applicable Required Amount as of the date of such Interest Drawing or withdrawal, calculated in accordance with clause (i) of the definition of “Required Amount” as of the date of such Interest Drawing or such withdrawal and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of the date of such Interest Drawing or such withdrawal, as the case may be.   Repayments of Interest Drawings or such withdrawals shall be deemed to have been made in the order in which such Interest Drawings or withdrawals were made.

 

Interest Drawing” has the meaning assigned to such term in Section 3.6(a).

 

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Interest Payment Date” means, with respect to any Primary Liquidity Facility, the final day of each Interest Period (as defined in such Primary Liquidity Facility) thereunder.

 

Interest Period” with respect to any Indenture, has the meaning assigned to such term in such Indenture.

 

Investment Earnings” means investment earnings on funds on deposit in the Trust Accounts net of losses and investment expenses of the Subordination Agent in making such investments.

 

ISTAT” means the International Society of Transport Aircraft Trading.

 

JetBlue” means JetBlue Airways Corporation, a Delaware corporation, and its successors and assigns.

 

JetBlue Bankruptcy Event” means the occurrence and continuation of any of the following:

 

(a)                                  JetBlue shall consent to the appointment of or the taking of possession by a receiver, trustee or liquidator of itself or of substantially all of its property, or shall make a general assignment for the benefit of creditors, or JetBlue shall file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization, liquidation or other relief in a case under any bankruptcy laws or other insolvency laws (as in effect at such time) or an answer admitting the material allegations of a petition filed against JetBlue in any such case, or JetBlue shall seek relief by voluntary petition, answer or consent, under the provisions of any other bankruptcy or other similar law providing for the reorganization or winding-up of corporations (as in effect at such time) or JetBlue shall seek an agreement, composition, extension or adjustment with its creditors under such laws, or JetBlue’s board of directors shall adopt a resolution authorizing corporate action in furtherance of any of the foregoing; or

 

(b)                                 an order, judgment or decree shall be entered by any court of competent jurisdiction appointing, without the consent of JetBlue, a receiver, trustee or liquidator of JetBlue or of substantially all of its property, or substantially all of the property of JetBlue shall be sequestered, or granting any other relief in respect of JetBlue as a debtor under any bankruptcy laws or other insolvency laws (as in effect at such time), and any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, unstayed and unvacated for a period of 90 days after the date of entry thereof; or

 

(c)                                  a petition against JetBlue in a case under any bankruptcy laws or other insolvency laws (as in effect at such time) is filed and not withdrawn or dismissed within 90 days thereafter, or if, under the provisions of any law providing for reorganization or winding-up of corporations which may apply to JetBlue, any court of competent jurisdiction assumes jurisdiction, custody or control of JetBlue or of any substantial part of its property and such jurisdiction, custody or control remains in force unrelinquished, unstayed and unterminated for a period of 90 days.

 

JetBlue Provisions” has the meaning specified in Section 9.1(a).

 

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Last Payment Date” has the meaning assigned to such term in Section 3.7(c).

 

Lending Office” means, with respect to any Primary Liquidity Facility, the office of the Primary Liquidity Provider thereunder, presently located at Stuttgart, Germany or such other office as such Liquidity Provider from time to time shall notify the applicable Trustee as its “Lending Office” under any such Primary Liquidity Facility; provided that such Primary Liquidity Provider shall not change its Lending Office to another Lending Office outside of Germany or the United States of America except in accordance with Section 3.01, 3.02 or 3.03 of any such Primary Liquidity Facility.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Lien” means any mortgage, pledge, lien, charge, claim, disposition of title, encumbrance, lease, sublease, sub-sublease or security interest of any kind, including, without limitation, any thereof arising under any conditional sales or other title retention agreement.

 

Liquidity Event of Default” with respect to any Primary Liquidity Facility, has the meaning assigned to such term in such Primary Liquidity Facility.

 

Liquidity Expenses” means, with respect to the Primary Liquidity Facilities, all Liquidity Obligations other than (i) the amount of any Drawings under the Primary Liquidity Facilities and (ii) any interest accrued on any Liquidity Obligations.

 

Liquidity Facility” means, at any time, a Primary Liquidity Facility or an Above-Cap Liquidity Facility, as applicable.

 

Liquidity Obligations” means all principal, interest, fees and other amounts owing to the Primary Liquidity Providers under the Primary Liquidity Facilities, Section 7.1 of the Participation Agreements or the Fee Letter other than (i) any indemnity payment or expense reimbursement owing to the Primary Liquidity Provider that is received by the Subordination Agent from JetBlue and (ii) any fees owing to the Primary Liquidity Provider that is received by the Subordination Agent from JetBlue.

 

Liquidity Provider” means, at any time, any Primary Liquidity Provider or any Above-Cap Liquidity Provider, as applicable.

 

Loan Trustee” means, with respect to any Indenture, the mortgagee thereunder.

 

Minimum Sale Price” means, with respect to any Aircraft or the Equipment Notes issued in respect of such Aircraft, at any time, the lesser of (a) in the case of such Aircraft, 75%, or in the case of such Equipment Notes, 80% of the Appraised Current Market Value of such Aircraft and (b) the aggregate outstanding principal amount of such Equipment Notes, plus accrued and unpaid interest thereon.

 

Moody’s” means Moody’s Investors Service, Inc.

 

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Non-Controlling Party” means, at any time, any of the Trustees, the Liquidity Providers or the Policy Provider which is not the Controlling Party at such time.

 

Non-Extended Facility” has the meaning assigned to such term in Section 3.6(d).

 

Non-Extension Drawing” has the meaning assigned to such term in Section 3.6(d).

 

Non-Performing Equipment Note” means an Equipment Note issued pursuant to an Indenture that is not a Performing Equipment Note.

 

Note Holder” with respect to an Indenture, has the meaning assigned to such term in such Indenture.

 

Note Purchase Agreement” means the Note Purchase Agreement dated as of the date hereof, among JetBlue, each Trustee, the Escrow Agent, the Subordination Agent and the Paying Agent.

 

Notice for Payment” means a Notice of Nonpayment as such term is defined in the Policy.

 

Notice of Avoided Payment” has the meaning assigned to such term in the Policy.

 

Officer’s Certificate” of any Person means a certification signed by a Responsible Officer of such Person.

 

Operative Agreements” means this Agreement, the Liquidity Facilities, the Policies, the Policy Provider Agreement, the Indentures, the Trust Agreements, the Underwriting Agreement, the Financing Agreements, the Fee Letter, the Policy Fee Letter, the Equipment Notes and the Certificates, together with all exhibits and schedules included with any of the foregoing.

 

Outstanding” means, when used with respect to each Class of Certificates, as of the date of determination, all Certificates of such Class theretofore authenticated and delivered under the related Trust Agreement, except:

 

(i)                                     Certificates of such Class theretofore canceled by the Registrar (as defined in such Trust Agreement) or delivered to the Trustee thereunder or such Registrar for cancellation;

 

(ii)                                  Certificates of such Class for which money in the full amount required to make the Final Distribution with respect to such Certificates pursuant to Section 11.01 of such Trust Agreement has been theretofore deposited with the related Trustee in trust for the holders of such Certificates as provided in Section 4.01 of such Trust Agreement pending distribution of such money to such Certificateholders pursuant to such Final Distribution payment; and

 

(iii)                               Certificates of such Class in exchange for or in lieu of which other Certificates have been authenticated and delivered pursuant to such Trust Agreement;

 

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provided, however, that in determining whether the holders of the requisite Outstanding amount of such Certificates have given any request, demand, authorization, direction, notice, consent or waiver hereunder, any Certificates owned by JetBlue or any of its Affiliates shall be disregarded and deemed not to be Outstanding, except that, in determining whether such Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Certificates that such Trustee knows to be so owned shall be so disregarded.  Certificates so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the applicable Trustee the pledgee’s right so to act with respect to such Certificates and that the pledgee is not JetBlue or any of its Affiliates.

 

Overdue Scheduled Payment” means any Scheduled Payment which is not in fact received by the Subordination Agent within ten Business Days after the Scheduled Payment Date relating thereto.

 

Participation Agreement” means, with respect to each Indenture, the “Participation Agreement” referred to therein.

 

Payee” has the meaning assigned to such term in Section 2.4(c).

 

Paying Agent” means WTC, as paying agent under each Escrow and Paying Agent Agreement, together with its successors in such capacity.

 

Performing Equipment Note” means an Equipment Note with respect to which no payment default has occurred and is continuing (without giving effect to any Acceleration); provided that in the event of a bankruptcy proceeding under the Bankruptcy Code under which JetBlue is a debtor, (i) any payment default occurring before the date of the order for relief in such proceeding existing during the 60-day period under Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may apply under Section 1110(b) of the Bankruptcy Code) (the “Section 1110 Period”) shall not be taken into consideration until the expiration of the applicable period, (ii) any payment default occurring after the date of the order for relief in such proceeding but during the Section 1110 Period will not be taken into consideration if such payment default is cured under Section 1110(a)(2)(B) of the Bankruptcy Code before the later of 30 days after the date of such default or the expiration of the Section 1110 Period and (iii) any payment default occurring after the Section 1110 Period will not be taken into consideration if such payment default is cured before the end of the grace period, if any, set forth in the related Indenture.

 

Performing Note Deficiency” means any time that less than 65% of the then aggregate outstanding principal amount of all Equipment Notes are Performing Equipment Notes.

 

Permitted Liens” has the meaning assigned to such term in the Indentures.

 

Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, trustee, unincorporated organization or government or any agency or political subdivision thereof.

 

Policy” means the Class G-1 Policy or the Class G-2 Policy, as applicable, and “Policies” shall mean both such policies.

 

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Policy Account” means the Class G-1 Policy Account or the Class G-2 Policy Account, as the case may be.

 

Policy Drawing” means, with respect to a Policy, any payment of a claim under such Policy.

 

Policy Expenses” means all amounts (including amounts in respect of expenses or indemnities) due to the Policy Provider under the Policy Provider Agreement or the Financing Agreements other than (i) any amounts due under the Policy Fee Letter, (ii) the amount of any Excess Reimbursement Obligations, (iii) any Policy Drawing and interest accrued thereon, (iv) any interest accrued on any Policy Provider Obligations, (v) reimbursement of and interest on the Liquidity Obligations in respect of the Primary Liquidity Facilities paid by the Policy Provider to any Primary Liquidity Provider, (vi) any indemnity payments owed to the Policy Provider and (vii) any amounts that the Policy Provider is entitled to receive by virtue of the subrogation rights of the Policy Provider hereunder, including, without limitation, fees and expenses incurred in connection with the enforcement of such rights.

 

Policy Fee Letter” means the fee letter, dated November 15, 2004 from the Policy Provider to JetBlue and the Subordination Agent.

 

Policy Provider” means MBIA Insurance Corporation.

 

Policy Provider Agreement” means the Insurance and Indemnity Agreement dated as of the date hereof among the Subordination Agent, as agent and trustee for the Class G-1 Trustee and Class G-2 Trustee, JetBlue and the Policy Provider as amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Policy Provider Amounts” means Policy Expenses, Policy Provider Obligations, amounts due under the Policy Fee Letter and all other obligations owing to the Policy Provider under this Agreement and under any Policy Provider Document.

 

Policy Provider Default” shall mean the occurrence of any of the following events (a) the Policy Provider fails to make a payment required under either Policy in accordance with its terms and such failure remains unremedied for 2 Business Days following the delivery of Written Notice of such failure to the Policy Provider or (b) the Policy Provider (i) files any petition or commences any case or proceeding under any provisions of any federal or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii) makes a general assignment for the benefit of its creditors or (iii) has an order for relief entered against it under any federal or state law relating to insolvency, bankruptcy, rehabilitation, liquidation or reorganization that is final and nonappealable, or (c) a court of competent jurisdiction, the New York Insurance Department or another competent regulatory authority enters a final and nonappealable order, judgment or decree (i) appointing a custodian, trustee, agent or receiver for the Policy Provider or for all or any material portion of its property or (ii) authorizing the taking of possession by a custodian, trustee, agent or receiver of the Policy Provider (or taking of possession of all or any material portion of the Policy Provider’s property).

 

Policy Provider Documents means each Policy, the Policy Provider Agreement and the Policy Fee Letter.

 

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Policy Provider Election” has the meaning assigned to such term in Section 3.7(c).

 

Policy Provider Interest Obligations” means any interest on any Policy Drawing made to cover any shortfall attributable to any failure of the relevant Primary Liquidity Provider to honor any Interest Drawing in accordance with Section 2.02(a) of the applicable Primary Liquidity Facility in an amount equal to the amount of interest that would have accrued on such Interest Drawing if such Interest Drawing had been made in accordance with Section 2.02(a) of such Primary Liquidity Facility, at the interest rate applicable to such Interest Drawing until such Policy Drawing has been repaid in full up to a maximum of six such Policy Drawings.

 

Policy Provider Obligations” means all reimbursement and other amounts, including, without limitation, fees and indemnities (to the extent not included in Policy Expenses), due to the Policy Provider under the Policy Provider Agreement but shall not include (i) any amounts under the Policy Fee Letter and (ii) any interest on Policy Drawings except Policy Provider Interest Obligations.

 

Policy Provider Rating” shall mean the respective ratings by each of the Ratings Agencies of the Policy Provider’s financial strength in respect of the Policy.

 

Policy Provider Threshold Rating” shall mean a Policy Provider Rating of Aaa by Moody’s and AAA by Standard & Poor’s.

 

Pool Balance” means, with respect to each Trust or the Certificates issued by any Trust, as of any date, (i) the original aggregate face amount of the Certificates of such Trust less (ii) the aggregate amount of all payments made in respect of the Certificates of such Trust or in respect of Deposits relating to such Trust other than payments made in respect of interest or Additional Payment thereon or reimbursement of any costs and expenses in connection therewith.  The Pool Balance for each Trust or for the Certificates issued by any Trust as of any Distribution Date shall be computed after giving effect to any special distribution with respect to unused Deposits, payment of principal of the Equipment Notes, payments under the related Policy (other than in respect of interest on the Certificates) or payment with respect to other Collateral held in such Trust and the distribution thereof to be made on that date.

 

Post-Default Appraisal” has the meaning assigned to such term in Section 4.1(a).

 

Preferred C Pool Balance” means, as of any date, the excess of (A) the Pool Balance of the Class C Certificates as of the immediately preceding Distribution Date (or, if such date is on or before the first Distribution Date, the original aggregate face amount of the Class C Certificates) (after giving effect to distributions made on such date) over (B) (i) the outstanding principal amount of each Series C Equipment Note which remains unpaid as of such date subsequent to the disposition of the Collateral (as defined in the Indenture pursuant to which such Series C Equipment Note was issued), (ii) the outstanding principal amount of each Series C Equipment Note which remains unpaid as of such date subsequent to the scheduled date of mandatory redemption of such Series C Equipment Note following an Event of Loss with respect to the Aircraft which secured such Series C Equipment Note, (iii) the difference between (x) the outstanding amount of principal and interest as of the date of sale of each Series C Equipment Note previously sold and (y) the purchase price received with respect to the sale of such Series C

 

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Equipment Note and (iv) the amount of principal outstanding on any Series C Equipment Note with respect to which a Deemed Disposition Event has occurred.

 

Prepayment Premium” has the meaning set forth in the Indenture.

 

Primary Cash Collateral Account” means the Class G-1 Primary Cash Collateral Account, the Class G-2 Primary Cash Collateral Account or the Class C Primary Cash Collateral Account, as applicable.

 

Primary Liquidity Facility” means, at any time, the Class G-1 Primary Liquidity Facility, the Class G-2 Primary Liquidity Facility or the Class C Primary Liquidity Facility, as applicable.

 

Primary Liquidity Provider” means, at any time, the Class G-1 Primary Liquidity Provider, the Class G-2 Primary Liquidity Provider or the Class C Primary Liquidity Provider, as applicable.

 

Prior Funds” means, with respect to any Distribution Date, (i) with respect to the Class G-1 Certificates, any amounts received by the Escrow Agent in the Class G-1 Paying Agent Account in respect of accrued interest on the Class G-1 Deposits, any Drawing paid under the Class G-1 Primary Liquidity Facility in respect of interest due on the Class G-1 Certificates on such Distribution Date and any withdrawal of funds from the Class G-1 Primary Cash Collateral Account and the Class G-1 Above-Cap Account in respect of such interest and (ii) with respect to the Class G-2 Certificates, any amounts received by the Escrow Agent in the Class G-2 Paying Agent Account in respect of accrued interest on the Class G-2 Deposits, any Drawing paid under the Class G-2 Primary Liquidity Facility in respect of interest due on the Class G-2 Certificates on such Distribution Date and any withdrawal of funds from the Class G-2 Primary Cash Collateral Account and the Class G-2 Above-Cap Account in respect of such interest.

 

Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.

 

Provider Incumbency Certificate” has the meaning assigned to such term in Section 2.5(c).

 

Provider Representatives” has the meaning assigned to such term in Section 2.5(c).

 

PTC Event of Default” means, with respect to each Trust Agreement, the failure to pay within 10 Business Days after the applicable Distribution Date:  (i) the outstanding Pool Balance of the applicable Class of Certificates on the Final Legal Distribution Date for such Class (unless, in the case of the Class G-1 Certificates or Class G-2 Certificates, the Subordination Agent shall have made a drawing under the related Policy in an aggregate amount sufficient to pay such outstanding Pool Balance and shall have distributed such amount to the Class G-1 Trustee and/or Class G-2 Trustee, as the case may be) or (ii) interest due on such Certificates on any Distribution Date (unless the Subordination Agent shall have made an Interest Drawing, or a withdrawal from the related Cash Collateral Account or the related Above-Cap Account, or in the case of the Class G-1 Trust or Class G-2 Trust, a drawing under the related Policy, with

 

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respect thereto in an aggregate amount sufficient to pay such interest and shall have distributed such amount to the Trustee entitled thereto).

 

Rating Agencies” means, collectively, at any time, each nationally recognized rating agency which shall have been requested to rate the Certificates and which shall then be rating the Certificates.  The initial Rating Agencies will be Moody’s and Standard & Poor’s.

 

Ratings Confirmation” means, with respect to any action proposed to be taken, a written confirmation from each of the Rating Agencies that such action would not result in (i) a reduction of the rating for any Class of Certificates below the then current rating for such Class of Certificates (such ratings as determined without regard to the Policies in respect of the Class G-1 Certificates and Class G-2 Certificates) or (ii) a withdrawal or suspension of the rating of any Class of Certificates.

 

Regular Distribution Dates” means each February 15, May 15, August 15 and November 15, commencing on February 15, 2005; provided, however, that, if any such day shall not be a Business Day, the related distribution shall be made on the next succeeding Business Day.

 

Replacement Above-Cap Liquidity Facility” means (i) an irrevocable interest rate cap agreement (or agreements) for the same term as the Above-Cap Liquidity Facility being replaced, in substantially the same form of the Above-Cap Liquidity Facility being replaced or in such other form (which may include a letter of credit) or (ii) solely in the event of the occurrence of an “Additional Termination Event” with respect to an Above-Cap Liquidity Provider, in addition to the Above-Cap Liquidity Facility of such Above-Cap Liquidity Provider, a guarantee of the obligation of such Above-Cap Liquidity Provider by an Affiliate thereof (an “ACLF Guarantee”), in each case as shall permit the Rating Agencies to issue in writing, and the Rating Agencies shall have issued in writing, a Ratings Confirmation (before the downgrading of the ratings on the Certificates, if any, as a result of any downgrading of the Above-Cap Liquidity Provider and without regard to the Policies), which agreement, in the case of clause (i) or ACLF Guarantee in the case of clause (ii), shall be issued by a Person (or Person(s)) having short-term unsecured debt ratings or short-term issuer credit ratings, as the case may be, issued by Moody’s and Standard & Poors that are equal to or higher than the applicable Threshold Rating (which Person, in the case of the Class G-1 Above-Cap Liquidity Facility and the Class G-2 Above-Cap Liquidity Facility will be consented to by the Policy Provider, which consent shall not be unreasonably withheld or delayed).

 

Replacement Above-Cap Liquidity Provider” means a Person (or Persons) who issue a Replacement Above-Cap Liquidity Facility.

 

Replacement Primary Liquidity Facility” means, for any Primary Liquidity Facility, an irrevocable revolving credit agreement (or agreements) in substantially the form of the replaced Primary Liquidity Facility, including reinstatement provisions, or in such other form (which may include a letter of credit) as shall permit the Rating Agencies to confirm in writing their respective ratings then in effect for the related Certificates (before downgrading of such ratings, if any, as a result of the downgrading of the applicable Primary Liquidity Provider and without regard to the Policies) and, in the case of the Class G-1 Primary Liquidity Facility and

 

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Class G-2 Primary Liquidity Facility only, consented to by the Policy Provider, which consent shall not be unreasonably withheld or delayed, in a face amount (or in an aggregate face amount) equal to the Required Amount and issued by a Person (or Persons) having short-term unsecured debt ratings or short-term issuer credit ratings, as the case may be, issued by both Rating Agencies which are equal to or higher than the Threshold Rating.  Without limitation of the form that a Replacement Primary Liquidity Facility otherwise may have pursuant to the preceding sentence, a Replacement Primary Liquidity Facility for any Class of Certificates may have a stated expiration date earlier than 15 days after the Final Legal Distribution Date of such Class of Certificates so long as such Replacement Primary Liquidity Facility provides for a Non-Extension Drawing as contemplated by Section 3.6(d) hereof.

 

Replacement Primary Liquidity Provider” means a Person (or Persons) who issues a Replacement Primary Liquidity Facility.

 

Required Amount” means, with respect to each Primary Liquidity Facility, or the Primary Cash Collateral Account, for any Class, for any day, (i) so long as there is no Interest Drawing made thereunder remaining unreimbursed on such day, the aggregate amount of interest, calculated at the rate per annum equal to the applicable Capped Interest Rate for the related Class of Certificates, that would be payable on such Class of Certificates on each of the six successive Regular Distribution Dates immediately following such day, without regard to expected future distributions of principal on such Class of Certificates or (ii) if one or more Interest Drawings made thereunder remain unreimbursed on such day, the sum of (x) the unreimbursed amount of such Interest Drawing(s) and (y) product of (A) the Undrawn Percentage and (B) the amount determined pursuant to clause (i) as if no Interest Drawings were outstanding and unreimbursed on such date.  The “Undrawn Percentage” as of any date is equal to one hundred percent minus the sum of the Individual Drawn Percentages for the Interest Drawings that are unreimbursed as of such date.  The Pool Balance for purposes of the definition of Required Amount with respect to the Class G-1 Primary Liquidity Facility and Class G-2 Primary Liquidity Facility shall, in the event of any Policy Provider Election, be deemed to be reduced by the amount (if positive) by which (a) the then outstanding principal balance of each Series G-1 Equipment Note and Series G-2 Equipment Note in respect of which such Policy Provider Election has been made shall exceed (b) the amount of any Policy Drawings previously paid by the Policy Provider in respect of principal on such Series G-1 Equipment Note and Series G-2 Equipment Note.  The Pool Balance for purposes of the definition of Required Amount with respect to the Class C Primary Liquidity Facility shall be the Preferred C Pool Balance as of the applicable date of determination.

 

Reserve Account” means the Eligible Deposit Account established by the Subordination Agent pursuant to Section 2.2 from which the Subordination Agent shall make withdrawals to fund the Post-Default Appraisals in accordance with Section 4.1 hereof.

 

Reserve Amount” means $75,000.

 

Responsible Officer” means (i) with respect to the Subordination Agent and each of the Trustees, any officer in the corporate trust administration department of the Subordination Agent or such Trustee with direct responsibility for the administration of the transactions contemplated hereby, and also means with respect to a particular corporate trust matter any officer of the

 

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Subordination Agent or such Trustee (as applicable) to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject, (ii) with respect to each Liquidity Provider, any authorized officer of such Liquidity Provider, and (iii) with respect to the Policy Provider, any authorized officer of the Policy Provider.

 

Scheduled Payment” means, with respect to any Equipment Note, (i) any payment of principal or interest on such Equipment Note (other than an Overdue Scheduled Payment) due from the obligor thereon or (ii) any payment of interest on the corresponding Class of Certificates with funds drawn under the Primary Liquidity Facility for such Class or withdrawn from the Primary Cash Collateral Account or the Above-Cap Account for such Class (or, in the case of any Series G-1 Equipment Note or Series G-2 Equipment Note, drawn under the related Policy), which payment represents the installment of principal at the stated maturity of such installment of principal on such Equipment Note, the payment of regularly scheduled interest accrued on the unpaid principal amount of such Equipment Note, or both; provided that any payment of principal of, Additional Payment, if any, or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.

 

Scheduled Payment Date” means, with respect to any Scheduled Payment, the date on which such Scheduled Payment is scheduled to be made.

 

Section 2.4(a) Fraction” has the meaning assigned to such term in Section 2.4(a).

 

Series C Equipment Notes” means the Series C Equipment Notes issued pursuant to any Indenture by JetBlue and authenticated by the Loan Trustee thereunder, and any such Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

 

Series G-1 Equipment Notes” means the Series G-1 Equipment Notes issued pursuant to any Indenture by JetBlue and authenticated by the Loan Trustee thereunder, and any such Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

 

Series G-2 Equipment Notes” means the Series G-2 Equipment Notes issued pursuant to any Indenture by JetBlue and authenticated by the Loan Trustee thereunder, and any such Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

 

Special Distribution Date” means with respect to any Special Payment:  (i) the date chosen by the Subordination Agent pursuant to Section 2.4(a) for the distribution of such Special Payment in accordance with this Agreement, whether distributed pursuant to Section 2.4 or Section 3.2 hereof, (ii) an Election Distribution Date or (iii) the date chosen by the Subordination Agent pursuant to Section 3.7(b), 3.7(c) or Section 3.7(e), as the case may be, for the distribution of such Special Payment in accordance with the provisions thereof or otherwise designated as a Special Distribution Date.

 

Special Payment” means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral.

 

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Special Payments Account” means the Eligible Deposit Account created pursuant to Section 2.2 as a sub-account to the Collection Account.

 

Special Termination Drawing” has the meaning assigned to such term in Section 3.6(k).

 

Special Termination Notice” with respect to any Primary Liquidity Facility has the meaning assigned to such term in such Primary Liquidity Facility.

 

Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

 

Stated Amount” with respect to any Primary Liquidity Facility, means the Maximum Commitment (as defined in such Primary Liquidity Facility).

 

Stated Expiration Date” has the meaning specified in Section 3.6(d).

 

Stated Interest Rate” means for each interest period (i) with respect to the Class G-1 Certificates, Three-Month LIBOR plus 0.375% per annum, (ii) with respect to the Class G-2 Certificates, Three-Month LIBOR plus 0.450% per annum and (iii) with respect to the Class C Certificates, Three-Month LIBOR plus 3.100% per annum; provided, that if a payment default on any Equipment Note exists on any Regular Distribution Date, the Stated Interest Rate for each Class of Certificates shall not exceed the applicable Capped Interest Rate for such Class for the interest period commencing on such Regular Distribution Date; provided further that, if all of the then continuing payment defaults on all of the Equipment Notes are cured during such interest period, the Stated Interest Rate for each Class of Certificates shall revert to the Stated Interest Rate for such period calculated without giving effect to the applicable Capped Interest Rate for such Class.

 

Subordination Agent” has the meaning assigned to it in the preliminary statements to this Agreement.

 

Subordination Agent Incumbency Certificate” has the meaning assigned to such term in Section 2.5(a).

 

Subordination Agent Representatives” has the meaning assigned to such term in Section 2.5(a).

 

Substitute Aircraft” shall have the meaning set forth in the Note Purchase Agreement.

 

Successor Trusts” means, collectively, JetBlue Airways Pass Through Trust 2004-2G-1-S, JetBlue Airways Pass Through Trust 2004-2G-2-S and JetBlue Airways Pass Through Trust 2004-2C-S.

 

Tax” and “Taxes” mean any and all taxes, levies, duties, tariffs, imposts and other charges of a similar kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States of America or by any state, local or

 

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foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation:  taxes on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes in the nature of excise, withholding, ad valorem, stamp, transfer, non-recoverable value added, taxes on goods and services and gains taxes.

 

Tax Letter” means that certain Tax Letter dated as of the date hereof among JetBlue, LBBW and the Subordination Agent with respect to the initial Primary Liquidity Facilities.

 

Termination Amount”, with respect to an Above-Cap Liquidity Facility, has the meaning assigned to such term in such Above-Cap Liquidity Facility.

 

Termination Notice” with respect to any Primary Liquidity Facility has the meaning assigned to such term in such Primary Liquidity Facility.

 

Three-Month LIBOR” has the meaning assigned to such term in the applicable Indentures.

 

Threshold Rating” means the short-term unsecured debt rating of P-1 by Moody’s and short-term issuer credit rating of A-1 by Standard & Poor’s for each Liquidity Provider.

 

Transfer” means, with respect to any particular Trust, the transfers contemplated by the Assignment and Assumption Agreement with respect to such Trust.

 

Treasury Regulations” means regulations, including proposed or temporary regulations, promulgated under the Code.  References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.

 

Triggering Event” means (x) the occurrence of an Indenture Event of Default under all of the Indentures resulting in a PTC Event of Default with respect to the most senior Class of Certificates then Outstanding, (y) the Acceleration of all of the outstanding Equipment Notes (provided that, with respect to the period prior to the Delivery Period Expiry Date, the aggregate principal balance of such Equipment Notes is in excess of $300 million) or (z) the occurrence of a JetBlue Bankruptcy Event.

 

Trust” means any of the Class G-1 Trust, the Class G-2 Trust or the Class C Trust.

 

Trust Accounts” has the meaning assigned to such term in Section 2.2(a).

 

Trust Agreement” means any of the Class G-1 Trust Agreement, the Class G-2 Trust Agreement or the Class C Trust Agreement.

 

Trustee” means any of the Class G-1 Trustee, the Class G-2 Trustee or the Class C Trustee.

 

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Trustee Incumbency Certificate” has the meaning assigned to such term in Section 2.5(b).

 

Trustee Representatives” has the meaning assigned to such term in Section 2.5(b).

 

Underwriters” means the several underwriters listed as such in the Underwriting Agreement.

 

Underwriting Agreement” means the Underwriting Agreement dated November 9, 2004 among the Underwriters and JetBlue, relating to the purchase of the Certificates by the Underwriters, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

 

Unindemnified Tax” means (i) any Tax imposed on the net income, net worth or capital, any franchise Tax or similar doing business Tax of the Subordination Agent, and (ii) any withholding Tax imposed by the United States (including, without limitation, any withholding Tax imposed by the United States which is imposed or increased as a result of the Subordination Agent’s failing to deliver to the Company any certificate or document necessary to establish that payments under this Agreement are exempt from withholding Tax).

 

Written Notice” means, from the Subordination Agent, any Trustee, any Liquidity Provider or the Policy Provider, a written instrument executed by the Designated Representative of such Person.  An invoice delivered by a Liquidity Provider pursuant to Section 3.1 in accordance with its normal invoicing procedures shall constitute Written Notice under such Section.

 

WTC” has the meaning assigned to such term in the recital of parties to this Agreement.

 

ARTICLE II

TRUST ACCOUNTS; CONTROLLING PARTY

 

Section 2.1.                                Agreement to Terms of Subordination; Payments from Monies Received Only.  (a) Each Trustee hereby (i) acknowledges and agrees to the terms of subordination and distribution set forth in this Agreement in respect of each Class of Certificates, (ii) agrees to enforce such provisions and cause all payments in respect of the Equipment Notes and the Liquidity Facilities and the Policies to be applied in accordance with the terms of this Agreement and (iii) with respect to payments in respect of the Equipment Notes received by it, agrees to allocate such payments first, to interest payable in respect of the Certificates issued by it, second, to amounts distributable in respect of the Pool Balance of such Certificates, and third, to Additional Payments, if any, payable in respect of such Certificates.  In addition, each Trustee hereby agrees to cause the Equipment Notes purchased by the related Trust to be registered in the name of the Subordination Agent or its nominee, as agent and trustee for such Trustee, to be held in trust by the Subordination Agent solely for the purpose of facilitating the enforcement of the subordination and other provisions of this Agreement.

 

(b)                                 Except as otherwise expressly provided in the next succeeding sentence of this Section 2.1(b), all payments to be made by the Subordination Agent hereunder shall be made

 

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only from amounts received by it that constitute Scheduled Payments, Special Payments or other payments under the Operative Agreements, including payments under Section 7.1 of the Participation Agreements and payments under Sections 6 and 7 of the Note Purchase Agreement, and only to the extent that the Subordination Agent shall have received sufficient income or proceeds therefrom to enable it to make such payments in accordance with the terms hereof.  Each of the Trustees and the Subordination Agent hereby agrees and, as provided in each Trust Agreement, each Certificateholder, by its acceptance of a Certificate, each Primary Liquidity Provider, by entering into the Primary Liquidity Facility to which it is a party, and the Policy Provider, by entering into the Policy Provider Agreement, have agreed to look solely to such amounts to the extent available for distribution to them as provided in this Agreement and to the relevant Deposits and that none of the Trustees, Loan Trustees, the Subordination Agent or WTC is personally liable to any of them for any amounts payable or any liability under this Agreement, any Trust Agreement, any Primary Liquidity Facility, the Policy Provider Agreement or such Certificate, except (in the case of the Subordination Agent) as expressly provided herein or (in the case of the Trustees) as expressly provided in each Trust Agreement or (in the case of the Loan Trustees) as expressly provided in any Operative Agreement.

 

Section 2.2.                                Trust Accounts.  (a) Upon the execution of this Agreement, the Subordination Agent shall establish and maintain in its name (i) the Collection Account as an Eligible Deposit Account, bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Trustees, the Certificateholders, the Primary Liquidity Providers and the Policy Provider, (ii) as a sub-account in the Collection Account, the Special Payments Account as an Eligible Deposit Account, bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Trustees, the Certificateholders, the Primary Liquidity Providers and the Policy Provider, (iii) (x) a Class G-1 Policy Account as an Eligible Deposit Account bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Class G-1 Certificateholders and (y) a Class G-2 Policy Account as an Eligible Deposit Account bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Class G-2 Certificateholders, (iv) the Reserve Account as an Eligible Deposit Account, bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Trustees and the Certificateholders, and (v) a Class G-1 Above-Cap Account, a Class G-2 Above-Cap Account and a Class C Above-Cap Account, each bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the related Trustee and Certificateholders.  The Subordination Agent shall establish and maintain the Cash Collateral Accounts pursuant to and under the circumstances set forth in Section 3.6(f) hereof.  Upon such establishment and maintenance under Section 3.6(f) hereof, the Cash Collateral Accounts shall, together with the Collection Account, the Policy Accounts and the Above-Cap Accounts, constitute the “Trust Accounts” hereunder.  Without limiting the foregoing, all monies credited to the Trust Accounts shall be, and shall remain, the property of the relevant Trust(s).

 

(b)                                 Funds on deposit in the Trust Accounts shall be invested and reinvested by the Subordination Agent in Eligible Investments selected by the Subordination Agent if such investments are reasonably available and have maturities no later than the earlier of (i) 90 days following the date of such investment and (ii) the Business Day immediately preceding the Regular Distribution Date or the date of the related distribution pursuant to Section 2.4 hereof, as

 

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the case may be, next following the date of such investment (provided that the Subordination Agent shall invest and reinvest funds on deposit in the Above-Cap Accounts and the Above-Cap Reserve Accounts in the manner specified in Schedule 2.2(b) attached hereto, subject to the foregoing limitation on maturity of such investment); provided, further, that following the making of (i) a Downgrade Drawing or a Special Termination Drawing under any Primary Liquidity Facility, the Subordination Agent shall invest and reinvest such amounts in Eligible Investments at the direction of JetBlue or (ii) a Non-Extension Drawing under any Primary Liquidity Facility or a Downgrade Drawing under any Primary Liquidity Facility with respect to which the relevant Primary Liquidity Provider has elected pursuant to the proviso in Section 3.6(e)(i)(C) hereof not to be replaced, the Subordination Agent shall invest and reinvest such amounts in the Primary Cash Collateral Accounts in Eligible Investments pursuant to the written instructions of the Primary Liquidity Provider funding such Non-Extension Drawing or Downgrade Drawing; provided further, however, that notwithstanding the foregoing, upon the occurrence and during the continuation of a Triggering Event, the Subordination Agent shall invest and reinvest such amounts (other than amounts in the Cash Collateral Accounts as a result of a Non-Extension Drawing or Downgrade Drawing, which shall be governed by the foregoing proviso) in Eligible Investments in accordance with the written instructions of the Controlling Party.  Unless otherwise expressly provided in this Agreement (including, without limitation, with respect to Investment Earnings on amounts on deposit in the Primary Cash Collateral Accounts, Above-Cap Reserve Accounts and in the Above-Cap Accounts, in each case, pursuant to Section 3.6(f) hereof), any Investment Earnings shall be deposited in the Collection Account when received by the Subordination Agent and shall be applied by the Subordination Agent in the same manner as the other amounts on deposit in the Collection Account are to be applied and any losses shall be charged against the principal amount invested, in each case net of the Subordination Agent’s reasonable fees and expenses in making such investments.  The Subordination Agent shall not be liable for any loss resulting from any investment, reinvestment or liquidation required to be made under this Agreement other than by reason of its willful misconduct or gross negligence or, with respect to the handling or transfer of funds, its own negligence.  Eligible Investments and any other investment required to be made hereunder shall be held to their maturities except that any such investment may be sold (without regard to its maturity) by the Subordination Agent without instructions whenever such sale is necessary to make a distribution required under this Agreement.  Uninvested funds held hereunder shall not earn or accrue interest.

 

(c)                                  The Subordination Agent shall possess all right, title and interest in all funds on deposit from time to time in the Trust Accounts and in all proceeds thereof (including all income thereon, except as otherwise expressly provided herein with respect to Investment Earnings).  The Trust Accounts shall be held in trust by the Subordination Agent under the sole dominion and control of the Subordination Agent for the benefit of the Trustees, the Certificateholders, the Liquidity Providers and the Policy Provider, as the case may be.  If, at any time, any of the Trust Accounts or the Reserve Account ceases to be an Eligible Deposit Account, the Subordination Agent shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, to which the Policy Provider, the Primary Liquidity Providers and each Rating Agency may consent) establish a new Collection Account, Special Payments Account, Policy Account, Reserve Account, Cash Collateral Account or Above-Cap Account, as the case may be, as an Eligible Deposit Account and shall transfer any cash and/or any investments to such new Collection Account, Special Payments Account, Policy Account, Reserve Account,

 

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Cash Collateral Account, or Above-Cap Account as the case may be.  So long as WTC is an Eligible Institution, the Trust Accounts and Reserve Account shall be maintained with it as Eligible Deposit Accounts.

 

(d)                                 The Subordination Agent shall possess all right, title and interest in all funds on deposit from time to time in the Reserve Account.  The Reserve Account shall be used by the Subordination Agent solely to fund the Post-Default Appraisals when required to be obtained pursuant to Section 4.1 hereof.

 

Section 2.3.                                Deposits to the Collection Account and Special Payments Account.  (a) The Subordination Agent shall, upon receipt thereof, deposit in the Collection Account all Scheduled Payments received by it (other than any Scheduled Payment which by the express terms hereof is to be deposited to the Policy Account or a Cash Collateral Account).

 

(b)                                 The Subordination Agent shall, on each date when one or more Special Payments are made to the Subordination Agent as holder of the Equipment Notes, deposit in the Special Payments Account the aggregate amount of such Special Payments.

 

Section 2.4.                                Distributions of Special Payments.  (a) Notice of Special Payment.  Except as provided in Section 2.4(c) or 2.7, upon receipt by the Subordination Agent, as registered holder of the Equipment Notes, of any notice of a Special Payment (or, in the absence of any such notice, upon receipt by the Subordination Agent of a Special Payment), the Subordination Agent shall promptly give notice thereof to each Trustee, the Primary Liquidity Providers and the Policy Provider.  The Subordination Agent shall promptly calculate the amount of the redemption or purchase of Equipment Notes, the amount of any Overdue Scheduled Payment or the proceeds of Equipment Notes or the Collateral, as the case may be, comprising such Special Payment under the applicable Indenture or Indentures and shall promptly send to each Trustee, the Primary Liquidity Providers and the Policy Provider a Written Notice of such amount and the amount allocable to each Trust.  Such Written Notice shall also set the distribution date for such Special Payment, which shall be the Business Day which immediately follows the later to occur of (x) the 15th day after the date of such Written Notice or (y) the date the Subordination Agent has received or expects to receive such Special Payment.  Amounts on deposit in the Special Payments Account shall be distributed in accordance with Article III hereof; provided, that if the Special Payment to be distributed on any Special Distribution Date results from the redemption, purchase or prepayment of any Equipment Note prior to the occurrence of a payment default under any Indenture, the amount of accrued and unpaid Liquidity Expenses and Policy Expenses which are not yet due that are payable pursuant to clause “second” of Section 3.2 and any unpaid amounts which are not yet due that are payable to the Policy Provider under the Policy Fee Letter pursuant to clause “eleventh” of Section 3.2, shall be multiplied by a fraction, the numerator of which shall be the aggregate outstanding principal amount of Equipment Notes being redeemed, purchased or prepaid on such Special Distribution Date, and the denominator of which shall be the aggregate outstanding principal amount of all Equipment Notes (the “Section 2.4(a) Fraction”).

 

(b)                                 Investment of Amounts in Special Payments Account.  Any amounts on deposit in the Special Payments Account prior to the distribution thereof pursuant to Article III

 

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hereof shall be invested in accordance with Section 2.2(b).  Investment Earnings on such investments shall be distributed in accordance with Article III hereof.

 

(c)                                  Certain Payments.  Except for amounts constituting Liquidity Obligations, Policy Expenses and Policy Provider Obligations, which shall be distributed on a Distribution Date as provided in Section 2.4(a) or 3.2 hereof, the Subordination Agent will distribute promptly upon receipt thereof (i) any indemnity payment or expense reimbursement received by it from JetBlue in respect of any Trustee, any Liquidity Provider, any Policy Provider, any Paying Agent, any Depositary or any Escrow Agent (collectively, the “Payees”) and (ii) any fees or premium received by it from JetBlue under any Operative Agreement in respect of any Payee, directly to the Payee entitled thereto.

 

Section 2.5.                                Designated Representatives.  (a) With the delivery of this Agreement, the Subordination Agent shall furnish to each Liquidity Provider, the Policy Provider and each Trustee, and from time to time thereafter may furnish to each Liquidity Provider, the Policy Provider and each Trustee, at the Subordination Agent’s discretion, or upon any Liquidity Provider’s, the Policy Provider’s or Trustee’s request (which request shall not be made more than one time in any 12-month period), a certificate (a “Subordination Agent Incumbency Certificate”) of a Responsible Officer of the Subordination Agent certifying as to the incumbency and specimen signatures of the officers of the Subordination Agent and the attorney-in-fact and agents of the Subordination Agent (the “Subordination Agent Representatives”) authorized to give Written Notices on behalf of the Subordination Agent hereunder.  Until each Liquidity Provider, the Policy Provider and Trustee receives a subsequent Subordination Agent Incumbency Certificate, it shall be entitled to rely on the last Subordination Agent Incumbency Certificate delivered to it hereunder.

 

(b)                                 With the delivery of this Agreement, each Trustee shall furnish to the Subordination Agent, and from time to time thereafter may furnish to the Subordination Agent, at such Trustee’s discretion, or upon the Subordination Agent’s request (which request shall not be made more than one time in any 12-month period), a certificate (a “Trustee Incumbency Certificate”) of a Responsible Officer of such Trustee certifying as to the incumbency and specimen signatures of the officers of such Trustee and the attorney-in-fact and agents of such Trustee (the “Trustee Representatives”) authorized to give Written Notices on behalf of such Trustee hereunder.  Until the Subordination Agent receives a subsequent Trustee Incumbency Certificate, it shall be entitled to rely on the last Trustee Incumbency Certificate delivered to it hereunder.

 

(c)                                  With the delivery of this Agreement, each Liquidity Provider and the Policy Provide shall furnish to the Subordination Agent, and from time to time thereafter may furnish to the Subordination Agent, at such Liquidity Provider’s or Policy Provider’s discretion, or upon the Subordination Agent’s request (which request shall not be made more than one time in any 12-month period), a certificate (each a “Provider Incumbency Certificate”) of any Responsible Officer of such Liquidity Provider or Policy Provider certifying as to the incumbency and specimen signatures of any officer, attorney-in-fact, agent or other designated representative of such Liquidity Provider or Policy Provider (in each case the “Provider Representatives” and, together with the Subordination Agent Representatives and the Trustee Representatives, the “Designated Representatives”) authorized to give Written Notices on

 

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behalf of such Liquidity Provider or Policy Provider hereunder.  Until the Subordination Agent receives a subsequent Provider Incumbency Certificate, it shall be entitled to rely on the last Provider Incumbency Certificate delivered to it hereunder by the relevant Liquidity Provider or the Policy Provider.

 

Section 2.6.                                Controlling Party.  (a) Except as provided in Section 2.6(c), 2.6(d) and 9.1(b) hereof, the Trustees, the Liquidity Providers and the Policy Provider hereby agree that, with respect to any Indenture at any given time, the Loan Trustee thereunder will be directed (including, without limitation, any direction to vote the Equipment Notes in any bankruptcy proceeding of JetBlue) by the Controlling Party in accordance with the terms and conditions hereof.

 

(b)                                 The Person who shall be the “Controlling Party” with respect to any Indenture shall be:  (x) the Policy Provider or, (i) if a Policy Provider Default has occurred and is continuing, or (ii) if the Policy Provider has been released from its obligations under the Policies (and such Policies have been returned to the Policy Provider) and all Policy Provider Amounts have been paid in full, until the Final Distribution on the Class G-1 and Class G-2 certificates has been made, the Class G-1 Trustee and Class G-2 Trustee, jointly, acting upon the instructions of the holders of a majority of the aggregate fractional undivided interests in both the Class G-1 Trust and Class G-2 Trust acting as a single class; and (y) upon payment of (i) Final Distributions to the holders of the Class G-1 Certificates and the Class G-2 Certificates and (ii) unless a Policy Provider Default has occurred and is continuing, all Policy Provider Amounts, the Class C Trustee; provided that, if the Policy Provider makes a payment in full on a Policy Drawing in respect of an Avoided Payment after the payment of the Final Distributions to the Class G-1 and Class G-2 Certificateholders, so long as no Policy Provider Default has occurred and is continuing, the Policy Provider will be the Controlling Party until no Policy Provider Amounts remain outstanding, and thereafter, the Class C Trustee.  For purposes of giving effect to the foregoing provisions of Section 2.6(a) above and this Section 2.6(b), the Trustees (other than the Controlling Party) irrevocably agree (and the Certificateholders (other than the Certificateholders represented by the Controlling Party) shall be deemed to agree by virtue of their purchase of Certificates) that the Subordination Agent, as record holder of the Equipment Notes, shall exercise its voting rights in respect of the Equipment Notes as directed by the Controlling Party, subject to Article IX hereof, and any vote so exercised shall be binding upon the Trustees and all Certificateholders.

 

The Subordination Agent shall give written notice to all of the other parties to this Agreement promptly upon a change in the identity of the Controlling Party.  Each of the parties hereto agrees that it shall not exercise any of the rights of the Controlling Party at such time as it is not the Controlling Party hereunder; provided, however, that nothing herein contained shall prevent or prohibit any Non-Controlling Party from exercising such rights as shall be specifically granted to such Non-Controlling Party hereunder and under the other Operative Agreements.

 

(c)                                  Notwithstanding the foregoing, at any time (A) after 18 months from the earliest to occur of (i) the date on which the entire Available Amount under any Primary Liquidity Facility shall have been drawn (excluding a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing but including a Final Drawing or a Downgrade Drawing, Non-Extension Drawing or Special Termination Drawing that has been converted to a

 

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Final Drawing under such Primary Liquidity Facility), (ii) the date on which the entire amount of any Downgrade Drawing, Non-Extension Drawing or Special Termination Drawing under a Primary Liquidity Facility shall have become an “Applied Downgrade Advances” or “Applied Non-Extension Advances” or “Applied Special Termination Advances”, as the case may be, under and as defined in such Primary Liquidity Facility and (iii) the date on which all Equipment Notes shall have been Accelerated (provided that, with respect to the period prior to the Delivery Period Expiry Date, such Equipment Notes have an aggregate outstanding principal balance of in excess of $300 million) and (B) (i) in the case of clause (A)(i) above, such amount drawn shall have remained unreimbursed during the 18-month period referred to in clause (A) above and remains unreimbursed at such time and (ii) in the case of clause (A)(ii) above, such “Applied Downgrade Advances” or “Applied Non-Extension Advances” or “Applied Special Termination Advances” shall have remained “Applied Downgrade Advances” or “Applied Non-Extension Advances” or “Applied Special Termination Advances”, as the case may be, during the 18-month period referred to in clause (A) above and remain “Applied Downgrade Advances” or “Applied Non-Extension Advances” or “Applied Termination Advances”, as the case may be, at such time, the Primary Liquidity Provider with the highest outstanding amount of Liquidity Obligations owed to it (so long as such Primary Liquidity Provider has not defaulted in its obligation to make any Drawing under any of its Primary Liquidity Facilities) shall have the right to elect, by Written Notice to the Subordination Agent, the Policy Provider and each of the Trustees, to become the Controlling Party hereunder with respect to any Indenture at any time from and including the last day of such 18-month period; provided, however, that if within 15 Business Days after its receipt of any such written notice from such Primary Liquidity Provider the Policy Provider pays to the Class G-1 Primary Liquidity Provider, the Class G-2 Primary Liquidity Provider and the Class C Primary Liquidity Provider all outstanding Drawings under each Primary Liquidity Facility together with accrued interest thereof (as so determined) in respect of the Class G-1 Primary Liquidity Facility, the Class G-2 Primary Liquidity Facility and the Class C Primary Liquidity Facility, respectively, then the Policy Provider rather than such Primary Liquidity Provider shall be the Controlling Party (x) so long as no Policy Provider Default has occurred and is continuing and (y) the Policy Provider thereafter pays to each of the Class G-1 and Class G-2 Primary Liquidity Providers all subsequent Drawings, together with accrued interest thereon, under the respective Primary Liquidity Facility as and when such obligations become due (which payments shall be applied by such Primary Liquidity Provider as repayments of such Drawings and accrued interest thereon), provided, further, however, that upon any such Policy Provider Default or the failure to comply with clause (y) of this Section 2.6(c), such Primary Liquidity Provider, if it so elects and if Liquidity Obligations owing to it remain outstanding, or, if it does not so elect or if no such Liquidity Obligations remain outstanding, the Person determined to be the Controlling Party in accordance with Section 2.06(b), shall become the Controlling Party.

 

(d)                                 Notwithstanding the foregoing, if any holders of the Class C Certificates exercise their right under Section 2.7 hereof to purchase all of the Series G-1 and Series G-2 Equipment Notes issued under an Indenture, the holders of the majority in aggregate unpaid principal amount of such Series G-1 and Series G-2 Equipment Notes shall be the Controlling Party with respect to such Indenture.

 

(e)                                  The exercise of remedies by the Controlling Party under this Agreement shall be expressly limited by Section 4.1(a)(ii) hereof.

 

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(f)                                    The Controlling Party shall not be entitled to require or obligate any Non-Controlling Party to provide funds necessary to exercise any right or remedy hereunder.

 

(g)                                 Notwithstanding anything contained herein to the contrary, neither the Controlling Party nor the Subordination Agent shall be authorized or empowered to do anything that would cause any Trust to fail to qualify as a “grantor trust” for federal income tax purposes.

 

Section 2.7.                                Buy Out Right.  (a) If an Indenture Event of Default under an Indenture has occurred and is continuing, (A) during the period commencing upon the occurrence of such Indenture Event of Default and ending on the date occurring six months after the earlier of (x) the Acceleration of the Equipment Notes issued under such Indenture or (y) the occurrence of a JetBlue Bankruptcy Event and (B) at any time after such Indenture Event of Default has occurred and been continuing for five years without an Actual Disposition Event occurring with respect to the Equipment Notes issued under such Indenture, with 30 days’ written notice to the Policy Provider, the Subordination Agent, the Class G-1 Trustee and Class G-2 Trustee and the Class C Certificateholders, all, but not less than all, of the Series G-1 and Series G-2 Equipment Notes issued with respect to such Indenture may be purchased from the Class G-1 Trustee and the Class G-2 Trustee by a holder of the Class C Certificates for the amounts set forth in clause (b) below.  If prior to the end of such 30 day period, any other holder of the Class C Certificates notifies the purchasing Class C Certificateholder, the Policy Provider and the Subordination Agent that it wants to participate in such purchase, then such other Certificateholder may join with the purchasing Certificateholder to purchase such Equipment Notes pro rata based on the interest in the Class C Trust held by each Certificateholder.

 

(b)                                 Upon each purchase by Class C Certificateholders of Series G-1 and Series G-2 Equipment Notes pursuant to Section 2.7(a) (such Certificateholders, the “Class C Purchasers”), on such date of purchase (each, a “Purchase Date”) the Class C Purchasers shall (i) pay to the Class G-1 Trustee and the Class G-2 Trustee the respective outstanding principal amount of such Series G-1 or Series G-2 Equipment Note held by such Trustee (less the amount of any Policy Drawings paid in respect of principal of such Equipment Note), together with any accrued and unpaid interest in respect of such Equipment Notes (but not to exceed the amount of interest payable on that portion of the Class G-1 or Class G-2 Certificates corresponding to such Series G-1 or Series G-2 Equipment Note), to but not including such Purchase Date, and Break Amount, if any, but without any Prepayment Premium and (ii) pay to the Policy Provider the amount of any Policy Drawings made by the Policy Provider in respect of such Equipment Note.  The amounts received by the Class G-1 and Class G-2 Trustees pursuant to this clause (b) attributable to principal of the purchased Series G-1 and G-2 Equipment Notes shall be distributed to the holders of the Class G-1 and Class G-2 Certificates, respectively, in reduction of the Pool Balance of their Certificates and the amounts attributable to interest shall be distributed to such Certificateholders as interest in respect of the amount of such reduction in the Pool Balance.

 

(c)                                  On each Purchase Date, the Class C Purchasers shall also pay (i) to each Primary Liquidity Provider an amount equal to the product of (A) the amount of any outstanding Liquidity Obligations owing to such Primary Liquidity Provider as of such Purchase Date and (B) the Buy-Out Fraction and (ii) to the Policy Provider an amount equal to the product of (A) the amount of any outstanding Policy Provider Obligations owing to the Policy Provider in

 

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respect of (x) any Interest Drawings paid by the Policy Provider due to a failure of any Liquidity Provider to perform its obligations under the related Liquidity Facility and any accrued and unpaid interest on such Interest Drawings and (y) if the Policy Provider has elected to pay the Primary Liquidity Provider all outstanding Drawings and interest thereon owing to the Primary Liquidity Provider, the amount of such outstanding Drawings and interest thereon (after application of any available funds in the applicable Primary Cash Collateral Account resulting from a Non-Extension Drawing or Downgrade Drawing paid by such Primary Liquidity Provider) and (B) the Buy-Out Fraction.  For purposes of this Section 2.7(c), on any Purchase Date, the “Buy-Out Fraction” shall be a fraction, the numerator of which is the aggregate amount of interest due and owing on such Purchase Date on the Equipment Notes issued under the Indenture pursuant to which the Series G-1 and Series G-2 Equipment Notes being purchased on such Purchase Date were issued, and the denominator of which will be the aggregate amount of interest due and owing on such Purchase Date on all Equipment Notes issued under Indentures with respect to which an Actual Disposition Event has not occurred.  For the avoidance of doubt, the payment by the Class C Purchasers of any Liquidity Obligations and/or Policy Provider Obligations pursuant to this clause (c) shall not discharge, alter or modify any rights, duties or obligations of the Primary Liquidity Provider or the Policy Provider under the Primary Liquidity Facilities or the Policies, respectively.

 

(d)                                 [Intentionally Omitted]

 

(e)                                  Upon payment of the Liquidity Obligations and the Policy Provider Obligations, if any, pursuant to Section 2.7(c), the Class C Purchasers shall be subrogated to the right of the Primary Liquidity Providers in respect of such Liquidity Obligations (or Policy Provider in respect of such Policy Provider Obligations) pursuant to Sections 2.4(a), 2.6(c) and 3.2 and shall rank in right of payment equally with any Liquidity Obligations owing to the Primary Liquidity Providers or Policy Providers, as the case may be.  Unless (i) a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the relevant Primary Liquidity Facility or (ii) a Final Drawing, a Downgrade Drawing, a Non-Extension Drawing or a Special Termination Drawing shall have occurred with respect to such Primary Liquidity Facility, the initial Available Amount under each Primary Liquidity Facility shall be reinstated (but not in excess of the related Required Amount) pro tanto to the extent of reimbursements received by the Class C Purchasers in respect of that portion of the Liquidity Obligations representing the principal portion of Drawings under the related Primary Liquidity Facility or such Policy Provider Obligations by an amount equal to the product of (i) the then Required Amount (calculated as if no Interest Drawing is outstanding), and (ii) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Drawings are reimbursed in the order in which they were made) in respect of principal of such Interest Drawing and the denominator of which is the Required Amount at the date of such Interest Drawing (calculated as if no Interest Drawing was then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date).

 

(f)                                    After the holders of the Class C Certificates have purchased any Series G-1 and Series G-2 Equipment Notes in accordance with Section 2.7(a), any proceeds or payments made with respect to such Series G-1 and Series G-2 Equipment Notes (other than interest accrued on such Equipment Notes prior to the Regular Distribution Date occurring immediately

 

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prior to the Purchase Date for such Equipment Notes, which amount of interest will be paid to the Subordination Agent for application in accordance with Article III hereof) will be paid directly to the holders of such Equipment Notes pro rata and will not be subject to application under Article III hereof.  Any proceeds or payments made with respect to any Series C Equipment Notes issued under the related Indenture will continue to be paid to the Subordination Agent and be applied in accordance with Article III hereof.

 

ARTICLE III

RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED

 

Section 3.1.                                Written Notice of Distribution.  (a) Prior to the occurrence of a Triggering Event, no later than 3:00 P.M. (New York City time) on the Business Day immediately preceding each Regular Distribution Date (or Special Distribution Date for purposes of Section 2.4(b) hereof, as the case may be), each of the following Persons shall deliver to the Subordination Agent a Written Notice setting forth the following information as at the close of business on such Business Day:

 

(i)                                     With respect to the Class G-1 Certificates and Class G-2 Certificates, the Class G-1 Trustee and Class G-2 Trustee shall separately set forth the amounts to be paid to it in accordance with clauses “eighth” and “tenth” of Section 3.2 hereof;

 

(ii)                                  With respect to the Class C Certificates, the Class C Trustee shall separately set forth the amounts to be paid to it in accordance with clauses “ninth”, “twelfth” and “thirteenth” of Section 3.2 hereof;

 

(iii)                               With respect to each Primary Liquidity Facility, the Primary Liquidity Provider thereunder shall separately set forth the amounts to be paid to it in accordance with clauses “‘first”, “second”, “third”, “fourth” and “fifth” of Section 3.2 hereof;

 

(iv)                              The Policy Provider shall set forth the amounts to be paid to it in accordance with clauses “first”, “second”, “third”, “fourth”, “eleventh” and “fourteenth” of Section 3.2 hereof; and

 

(v)                                 Each Trustee shall set forth the amounts to be paid to it in accordance with clause “seventh” of Section 3.2 hereof.

 

The notices required under this Section 3.1(a) may be in the form of a schedule or similar document provided to the Subordination Agent by the parties referenced therein or by any one of them, which schedule or similar document may state that, unless there has been a prepayment of the Certificates, such schedule or similar document is to remain in effect until any substitute notice or amendment shall be given to the Subordination Agent by the party providing such notice.

 

(b)                                 Following the occurrence of a Triggering Event, the Subordination Agent shall request the following information from the following Persons, and each of the following

 

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Persons shall, upon the request of the Subordination Agent, deliver a Written Notice to the Subordination Agent setting forth for such Person the following information:

 

(i)                                     With respect to the Class G-1 Certificates and Class G-2 Certificates, the Class G-1 Trustee and Class G-2 Trustee shall separately set forth the amounts to be paid to it in accordance with clauses “first”, “seventh” (to reimburse payments made by such Trustee or the Class G-1 Certificateholders and Class G-2 Certificateholders pursuant to subclause (ii) or (iv) of clause “first” and subclauses (ii) and (iii) of clause “seventh” of Section 3.2 hereof), “eighth” and “tenth” of Section 3.2 hereof;

 

(ii)                                  With respect to the Class C Certificates, the Class C Trustee shall separately set forth the amounts to be paid to it in accordance with clauses “first”, “seventh” (to reimburse payments made by such Trustee or the Class C Certificateholders pursuant to subclause (ii) or (iv) of clause “first” and subclauses (ii) and (iii) of clause “sixth” of Section 3.2 hereof), “ninth”, “twelfth” and “thirteenth” of Section 3.2 hereof;

 

(iii)                               With respect to each Primary Liquidity Facility, the Primary Liquidity Provider thereunder shall separately set forth the amounts to be paid to it in accordance with subclauses (iii) and (iv) of clause “first” of Section 3.2 hereof, subclause (i) of clause “second” and clauses “third”, “fourth” and “fifth” of Section 3.2 hereof;

 

(iv)                              The Policy Provider shall separately set forth amounts to be paid to it in accordance with subclauses (iii) and (iv) of clause “first” of Section 3.2 hereof, subclause (ii) of clause “second”, subclauses (ii) and (iii) of clause “third”, subclause (II) of clause “fourth”, clause “eleventh” and clause “fourteenth” of Section 3.2 hereof; and

 

(v)                                 Each Trustee shall set forth the amounts to be paid in accordance with clause “seventh” of Section 3.2 hereof.

 

(c)                                  At such time as a Trustee, a Primary Liquidity Provider or the Policy Provider shall have received all amounts owing to it (and, in the case of a Trustee, the Certificateholders for which it is acting) pursuant to Section 2.4, 3.2 or 3.7 hereof, as applicable, and, in the case of a Primary Liquidity Provider or the Policy Provider, its commitment or obligations under the related Primary Liquidity Facility or the Policy, as the case may be, shall have terminated or expired, such Person shall, by a Written Notice, so inform the Subordination Agent and each other party to this Agreement.

 

(d)                                 As provided in Section 6.5 hereof, the Subordination Agent shall be fully protected in relying on any of the information set forth in a Written Notice provided by any Trustee, any Primary Liquidity Provider or the Policy Provider pursuant to paragraphs (a) through (c) above and shall have no independent obligation to verify, calculate or recalculate any amount set forth in any Written Notice delivered in accordance with such paragraphs.

 

(e)                                  Any Written Notice delivered by a Trustee, a Liquidity Provider, the Policy Provider or the Subordination Agent, as applicable, pursuant to Section 3.1(b), 3.1(c) or 3.7 hereof, if made prior to 10:00 A.M. (New York City time) on any Business Day shall be effective on the date delivered (or if delivered later on a Business Day or if delivered on a day

 

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which is not a Business Day shall be effective as of the next Business Day).  Subject to the terms of this Agreement, the Subordination Agent shall as promptly as practicable comply with any such instructions; provided, however, that any transfer of funds pursuant to any instruction received after 10:00 A.M. (New York City time) on any Business Day may be made on the next succeeding Business Day.

 

(f)                                    In the event the Subordination Agent shall not receive from any Person any information set forth in paragraph (a) or (b) above which is required to enable the Subordination Agent to make a distribution to such Person pursuant to Section 2.4 or 3.2 hereof, the Subordination Agent shall request such information and, failing to receive any such information, the Subordination Agent shall not make such distribution(s) to such Person.  In such event, the Subordination Agent shall make distributions pursuant to clauses “first” through “sixteenth” of Section 3.2 to the extent it shall have sufficient information to enable it to make such distributions, and shall continue to hold any funds remaining, after making such distributions, until the Subordination Agent shall receive all necessary information to enable it to distribute any funds so withheld.

 

(g)                                 On such dates (but not more frequently than monthly) as any Liquidity Provider, the Policy Provider or any Trustee shall request, but in any event automatically at the end of each calendar quarter, the Subordination Agent shall send to such party a written statement reflecting all amounts on deposit with the Subordination Agent pursuant to Section 3.1(f) hereof and, in the case of the quarterly report, the amounts distributed on each Regular Distribution Date and any Special Distribution Date occurring during the quarter then ended.

 

Section 3.2.                                Distribution of Amounts on Deposit in the Collection Account.  Except as otherwise provided in Sections 2.4, 3.1(f), 3.4 and 3.6(b), amounts on deposit in the Collection Account shall be promptly distributed on each Regular Distribution Date or amounts on deposit in the Special Payments Account in the case of any Special Payment, on the Special Distribution Date thereof in the following order of priority and in accordance with the information provided to the Subordination Agent pursuant to Section 3.1(a) hereof (if applicable):

 

first, such amount as shall be required to reimburse (i) the Subordination Agent for any reasonable out-of-pocket costs and expenses actually incurred by it (to the extent not previously reimbursed) in the protection of, or the realization of the value of, the Equipment Notes or any Collateral, shall be applied by the Subordination Agent in reimbursement of such costs and expenses, (ii) each Trustee for any amounts of the nature described in clause (i) above actually incurred by it under the applicable Trust Agreement (to the extent not previously reimbursed), shall be distributed to such Trustee, (iii) each of the Policy Provider and the Primary Liquidity Provider for any amounts of the nature described in clause (i) above actually incurred by it (to the extent not previously reimbursed), shall be distributed to the Policy Provider or Liquidity Provider, as the case may be, (iv) any Primary Liquidity Provider, the Policy Provider or any Certificateholder for payments, if any, made by it to the Subordination Agent or any Trustee in respect of amounts described in clause (i) above actually incurred by it (to the extent not previously reimbursed), shall be distributed to the Primary Liquidity Provider, the Policy Provider or such Certificateholder and (v) if the Subordination Agent shall

 

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have requested the initial Post-Default Appraisals, to fund or replenish the Reserve Account up to the Reserve Amount, but in no event (other than the initial funding of the Reserve Account) more than $25,000 in the aggregate during any calendar year, shall be distributed to the Subordination Agent, in each such case, pro rata on the basis of all amounts described in clauses (i) through (v) above;

 

second, such amount then remaining as shall be required to pay (i) all accrued and unpaid Liquidity Expenses owed to each Primary Liquidity Provider and (ii) all accrued and unpaid Policy Expenses owed to the Policy Provider, shall be distributed to each Primary Liquidity Provider and the Policy Provider pro rata on the basis of the amount of Liquidity Expenses and Policy Expenses owed to each Primary Liquidity Provider and the Policy Provider;

 

third, such amount then remaining as shall be required to pay (i) the aggregate amount of interest accrued and unpaid on all Liquidity Obligations (at the rate, or in the amount, provided in the applicable Primary Liquidity Facility) (determined after the application of the proceeds of any Excess Interest Policy Drawing or other payment by the Policy Provider to the applicable Primary Liquidity Provider in accordance with the provisions of Section 2.6(c)), (ii) the aggregate amount of any Policy Provider Interest Obligations, (iii) if the Policy Provider has elected pursuant to the proviso to Section 2.6(c) to pay to each Primary Liquidity Provider all outstanding Drawings and interest thereon owing to such Primary Liquidity Provider under the applicable Primary Liquidity Facility (to the extent not included in the definition of Excess Reimbursement Obligations), the amount of such payment made to such Primary Liquidity Provider attributable to interest accrued on such Drawings, and (iv) if one or more Special Termination Drawings have been made under the Primary Liquidity Facilities that have not been converted into a Final Drawing, the outstanding amount of such Special Termination Drawings, shall be distributed to the Primary Liquidity Provider and the Policy Provider pro rata on the basis of the amount of such Liquidity Obligations owed to such Primary Liquidity Provider and the amount of such Policy Provider Obligations payable under this clause “third” to the Policy Provider;

 

fourth, such amount then remaining as shall be required (I)(A) if any Primary Cash Collateral Account had been previously funded as provided in Section 3.6(f), unless (i) a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the relevant Primary Liquidity Facility or (ii) a Final Drawing shall have occurred with respect to such Primary Liquidity Facility, to fund such Primary Cash Collateral Account up to its Required Amount (calculated as if there are no unreimbursed Interest Drawings under such Primary Liquidity Facility) shall be deposited in such Primary Cash Collateral Account, (B) if any Primary Liquidity Facility shall become a Downgraded Facility or a Non-Extended Facility at a time when unreimbursed Interest Drawings under such Primary Liquidity Facility have reduced the Available Amount thereunder to zero, unless (i) a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the relevant Primary Liquidity Facility or (ii) a Final Drawing shall have occurred with respect to such Primary Liquidity Facility, to fund the related Primary Cash Collateral Account up to such Primary Cash Collateral Account’s Required Amount (calculated as

 

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if there are no unreimbursed Interest Drawings under such Primary Liquidity Facility) shall be deposited in such Primary Cash Collateral Account, and (C) if, with respect to any particular Primary Liquidity Facility, neither subclause (I)(A) nor subclause (I)(B) of this clause “fourth” are applicable, to pay in full the outstanding amount of all Liquidity Obligations (net of any and all payments made by the Policy Provider to the Primary Liquidity Provider in respect of the principal amount of Interest Advances) then due under such Primary Liquidity Facility (other than amounts payable pursuant to clause “second” or “third” of this Section 3.2) and (II) if the Policy Provider has elected pursuant to the proviso to Section 2.6(c) to pay to each Primary Liquidity Provider all outstanding Drawings and interest thereon owing to such Primary Liquidity Provider under the applicable Primary Liquidity Facility or if the Policy Provider has made any Policy Drawings pursuant to Section 3.7(a) as a result of the failure of the relevant Primary Liquidity Provider to honor any Interest Drawings in accordance with Section 2.02(a) of the applicable Primary Liquidity Facility in respect of the Class G-1 Certificates or Class G-2 Certificates, as the case maybe, the amount of such payment made to such Primary Liquidity Provider in respect of principal of Drawings under such Primary Liquidity Facility and the amount of such Policy Drawing, as applicable, shall be distributed to such Primary Liquidity Provider and the Policy Provider, pro rata on the basis of the amounts of all such deficiencies and/or unreimbursed Liquidity Obligations in respect of each Primary Liquidity Provider and the amount of such unreimbursed Policy Provider Obligations payable under this clause “fourth” to the Policy Provider;

 

fifth, if, with respect to any particular Primary Liquidity Facility, any amounts are to be distributed pursuant to either subclause (I)(A) or (I)(B) of clause “fourth” above, such amount then remaining as shall be required to pay the Primary Liquidity Provider with respect to such Primary Liquidity Facility the excess of (x) the aggregate outstanding amount of unreimbursed Advances (whether or not then due) under such Primary Liquidity Facility over (y) the Required Amount for the relevant Primary Liquidity Facility, pro rata on the basis of such amounts in respect of each Primary Liquidity Provider;

 

sixth, if any Above-Cap Reserve Account had been previously funded as provided in Section 3.6(f), unless (i) a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the related Primary Liquidity Facility or (ii) a Final Drawing shall have occurred with respect to such Primary Liquidity Facility, to fund such Above-Cap Reserve Account up to an amount equal to the applicable Termination Amount (as recalculated on such Distribution Date) less any amount then on deposit in the related Above-Cap Account shall be deposited in such Above-Cap Reserve Account;

 

seventh, such amount then remaining as shall be required to reimburse or pay (i) the Subordination Agent for any Tax (other than Unindemnified Taxes), expense, fee, charge or other loss incurred by or any other amount payable to the Subordination Agent in connection with the transactions contemplated hereby (to the extent not previously reimbursed), shall be applied by the Subordination Agent in reimbursement of such amount, (ii) each Trustee for any Tax (other than Unindemnified Taxes), expense, fee, charge, loss or any other amount payable to such Trustee under the applicable Trust

 

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Agreements (to the extent not previously reimbursed), shall be distributed to such Trustee, and (iii) each Certificateholder for payments, if any, made by it pursuant to Section 5.2 hereof in respect of amounts described in clause (i) above, shall be distributed to the applicable Trustee for the account of such Certificateholder, in each such case, pro rata on the basis of all amounts described in clauses (i) through (iii) above;

 

eighth, such amount then remaining as shall be required to pay accrued and unpaid interest at the Stated Interest Rate on the Class G-1 Certificates and Class G-2 Certificates (excluding interest, if any, payable with respect to the Deposits relating to such Trusts) shall be distributed to the Class G-1 Trustee and Class G-2 Trustee; provided that if available funds are insufficient to pay such interest in full to each such Class available funds will be distributed to each of the Class G-1 Trustee and the Class G-2 Trustee in the same proportion as such Trustee’s proportionate share of the aggregate amount of such interest;

 

ninth, such amount then remaining as shall be required to pay unpaid Adjusted Interest on the Class C Certificates to the holders of the Class C Certificates (excluding interest, if any, payable with respect to the Deposits relating to the Class C Trust);

 

tenth, such amount then remaining as shall be required to pay in full Expected Distributions on the Class G-1 Certificates and Class G-2 Certificates shall be distributed to the Class G-1 Trustee and Class G-2 Trustee; provided that if available funds are insufficient to pay Expected Distributions to each such Class in full, available funds will be distributed to each of the Class G-1 Trustee and the Class G-2 Trustee in the same proportion as such Trustee’s proportionate share of the aggregate amount of such Expected Distribution;

 

eleventh, such amount then remaining as shall be required to pay to the Policy Provider all Policy Provider Obligations then due to the Policy Provider under the Policy Provider Agreement (other than amounts payable pursuant to clauses “first”, “second”, “third” and “fourth” of this Section 3.2 and Excess Reimbursement Obligations) and amounts due under the Policy Fee Letter shall be paid to the Policy Provider;

 

twelfth, such amount then remaining as shall be required to pay in full interest then due at the Stated Interest Rate on the Pool Balance of the Class C Certificates which was not previously paid pursuant to clause “ninth” above to the holders of the Class C Certificates (excluding interest, if any, payable with respect to the Deposits related to the Class C Trust);

 

thirteenth, such amount then remaining as shall be required to pay in full Expected Distributions on the Class C Certificates shall be distributed to the Class C Trustee;

 

fourteenth, such amount then remaining as shall be required to pay in full any Excess Reimbursement Obligations shall be distributed to the Policy Provider;

 

fifteenth, if any Above-Cap Reserve Account had been previously funded as provided in Section 3.6(f), unless (i) a Performing Note Deficiency exists and a Liquidity

 

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Event of Default shall have occurred and be continuing with respect to the related Primary Liquidity Facility or (ii) a Final Drawing shall have occurred with respect to such Primary Liquidity Facility, to fund such Above-Cap Reserve Account up to an amount equal to the applicable Termination Amount (as recalculated on such Distribution Date) shall be deposited in such Above-Cap Reserve Account; and

 

sixteenth, such amount then remaining shall be deposited in the Collection Account to be distributed on the next Distribution Date.

 

Section 3.3.                                [Intentionally Omitted].

 

Section 3.4.                                Other Payments.  (a) Any payments received by the Subordination Agent for which no provision as to the application thereof is made in this Agreement shall be distributed by the Subordination Agent in the order of priority specified in Section 3.2.

 

(b)                                 If the Subordination Agent receives any Scheduled Payment after the Scheduled Payment Date relating thereto, but prior to such payment becoming an Overdue Scheduled Payment, then the Subordination Agent shall deposit such Scheduled Payment in the Collection Account and promptly distribute such Scheduled Payment in accordance with the priority of distributions set forth in Section 3.2 hereof; provided that, for the purposes of this Section 3.4(b) only, each determination made in clauses “eighth”, “ninth”, “tenth”, “twelfth” or “thirteenth” of Section 3.2 by use of the definition of “Distribution Date” shall be deemed to refer to such Scheduled Payment Date.

 

Section 3.5.                                Payments to the Trustees, Primary Liquidity Providers and Policy Provider.  Any amounts distributed hereunder to any Primary Liquidity Provider or the Policy Provider shall be paid to such Primary Liquidity Provider or Policy Provider by wire transfer of funds to the address such Primary Liquidity Provider or Policy Provider shall provide to the Subordination Agent.  The Subordination Agent shall provide a Written Notice of any such transfer to the applicable Primary Liquidity Provider or Policy Provider, as the case may be, at the time of such transfer.  Any amounts distributed hereunder by the Subordination Agent to any Trustee which shall not be the same institution as the Subordination Agent shall be paid to such Trustee by wire transfer funds at the address such Trustee shall provide to the Subordination Agent.

 

Section 3.6.                                Liquidity Facilities.  (a) Interest Drawings and Above-Cap Payments.  If on any Distribution Date, after giving effect to the subordination provisions of this Agreement and any Election Interest Payments made by the Policy Provider, the Subordination Agent shall not have sufficient funds for the payment of any amounts due and owing in respect of accrued interest on the Class G-1 Certificates or the Class G-2 Certificates or the Adjusted Interest with respect to the Class C Certificates, other than any amount of interest or Adjusted Interest which was due and payable on the Class G-1 Certificates, the Class G-2 Certificates or the Class C Certificates on such Distribution Date but which remains unpaid due to the failure of the Depositary to pay any amount of accrued interest on the Deposits on such Distribution Date, then, prior to 12:00 noon (New York City time) on such Distribution Date, (i) the Subordination Agent shall request a drawing (each such drawing, an “Interest Drawing”) under the Primary Liquidity Facility with respect to such Class of Certificates (and concurrently with the making of

 

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such request, the Subordination Agent shall give notice to the Policy Provider of such insufficiency of funds) in an amount equal to the lesser of (x) an amount sufficient to pay the amount of such accrued interest, in the case of the Class G-1 Certificates and the Class G-2 Certificates, or such Adjusted Interest, in the case of the Class C Certificates, (at the Stated Interest Rate for such Class of Certificates) and (y) the Available Amount under such Primary Liquidity Facility, and upon receipt of such amount shall pay such amount to the Trustee with respect to such Class of Certificates in payment of such accrued interest, in the case of the Class G-1 Certificates and the Class G-2 Certificates, or Adjusted Interest, in the case of the Class C Certificates, and (ii) if Three-Month LIBOR for the Interest Period ending on such Distribution Date (or, if such Distribution Date is not the last day of an Interest Period, Three-Month LIBOR for the Interest Period including such Distribution Date) exceeds Capped Three-Month LIBOR, the Subordination Agent shall (if it can make the certification described in the last sentence of this Section 3.6(a) and the relevant Above-Cap Liquidity Facility has not been terminated or expired) request an interest rate cap payment (each such payment, an “Above-Cap Payment”) under the Above-Cap Liquidity Facility with respect to such Class of Certificates, for credit to the applicable Above-Cap Account in an amount equal to the excess of (1) an amount equal to the product of (x) the excess of Three-Month LIBOR for the Interest Period ending on such Distribution Date (or, if such Distribution Date is not the last day of an Interest Period, Three-Month LIBOR for the Interest Period including such Distribution Date) over Capped Three-Month LIBOR, multiplied by (y) (A) in the case of the Class G-1 Certificates and Class G-2 Certificates, the Pool Balance with respect to such Class of Certificates as of such Distribution Date (and before giving effect to any distribution on such date) and (B) with respect to the Class C Certificates, the Preferred C Pool Balance as of such Distribution Date (and before giving effect to any distribution on such date), multiplied by (z) the actual number of days elapsed during the period commencing on the first day of such Interest Period and ending on such Distribution Date divided by 360 over (2) the amount, if any, on deposit in the Above-Cap Account for such Class of Certificates, and upon the receipt thereof the Subordination Agent shall immediately deposit such Above-Cap Payment into the Above-Cap Account for such Class of Certificates.  If the Interest Drawing on such Distribution Date pursuant to clause (i) above, together with all other amounts available to the Subordination Agent on such Distribution Date (after giving effect to the subordination provisions of this Agreement and any withdrawals from the applicable Primary Cash Collateral Account but not with respect to any amounts under either Policy), is insufficient to pay accrued interest, in the case of the Class G-1 Certificates and the Class G-2 Certificates, or Adjusted Interest, in the case of the Class C Certificates (at the Stated Interest Rate with respect to such Class of Certificates for the applicable Interest Period) payable with respect to such Class of Certificates on such Distribution Date (such deficiency, the “Deficiency Amount”), the Subordination Agent shall, prior to 4:00 p.m. (New York City time) on such Distribution Date, withdraw (each, an “Above-Cap Withdrawal”) from the Above-Cap Account with respect to such Class of Certificates an amount equal to the lesser of (x) such Deficiency Amount and (y) the amount on deposit in the Above-Cap Account (including any amounts deposited, or to be deposited, on such Distribution Date pursuant to clause (ii) above), and shall pay such amount to the Trustee with respect to such Class of Certificates in payment of such accrued interest, in the case of the Class G-1 Certificates and the Class G-2 Certificates, or such Adjusted Interest, in the case of the Class C Certificates.  In connection with a request for an Above-Cap Payment under any Above-Cap Liquidity Facility pursuant to clause (ii) above, the Subordination Agent shall certify to the Above-Cap Liquidity Provider with respect to such

 

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Class of Certificates that at least one of the following statements is true as of such Distribution Date prior to making such Above-Cap Withdrawal:  (x) the Available Amount under the Primary Liquidity Facility with respect to such Class of Certificates (prior to giving effect to any Interest Drawings to be made on such Distribution Date) is greater than zero or (y) the amount on deposit in the Primary Cash Collateral Account relating to such Primary Liquidity Facility (prior to giving effect to any withdrawal to be made from such account on such Distribution Date) is greater than zero.

 

(b)                                 Application of Interest Drawings and Above-Cap Withdrawals.  Notwithstanding anything to the contrary contained in this Agreement, (i) all payments received by the Subordination Agent in respect of an Interest Drawing under the Class G-1 Primary Liquidity Facility and all amounts withdrawn by the Subordination Agent from the Class G-1 Primary Cash Collateral Account, and payable in each case to the Class G-1 Trustee on behalf of the Class G-1 Certificateholders, shall be promptly distributed to the Class G-1 Trustee, (ii) all payments received by the Subordination Agent in respect of an Interest Drawing under the Class G-2 Primary Liquidity Facility and all amounts withdrawn by the Subordination Agent from the Class G-2 Primary Cash Collateral Account, and payable in each case to the Class G-2 Trustee on behalf of the Class G-2 Certificateholders, shall be promptly distributed to the Class G-2 Trustee, (iii) all payments received by the Subordination Agent in respect of an Interest Drawing under the Class C Primary Liquidity Facility and all amounts withdrawn by the Subordination Agent from the Class C Primary Cash Collateral Account, and payable in each case to the Class C Trustee on behalf of the Class C Certificateholders, shall be promptly distributed to the Class C Trustee, except, with respect to clauses (i), (ii) and (iii), that if (x) the Subordination Agent shall receive any amount in respect of an Interest Drawing under the Class G-1 Primary Liquidity Facility or Class G-2 Primary Liquidity Facility or a withdrawal from the Class G-1 Primary Cash Collateral Account or Class G-2 Primary Cash Collateral Account to pay Accrued Class G-1 Interest or Accrued Class G-2 Interest after such Accrued Class G-1 Interest or Accrued Class G-2 Interest has been fully paid by a Policy Drawing under the Policy, or (y) the Subordination Agent shall receive any amount in respect of a Policy Drawing under the applicable Policy pursuant to Section 3.7(a) hereof to pay Accrued Class G-1 Interest or Accrued Class G-2 Interest after such Accrued Class G-1 Interest or Accrued Class G-2 Interest has been fully paid by an Interest Drawing under the applicable Primary Liquidity Facility or a withdrawal from the applicable Primary Cash Collateral Account, then such amounts shall be paid directly to the Policy Provider as reimbursement of such Policy Drawing rather than to the Class G-1 Trustee and/or Class G-2 Trustee on behalf of the Class G-1 Certificateholders and/or Class G-2 Certificateholders and shall constitute an Interest Drawing under the Class G-1 Primary Liquidity Facility or Class G-2 Primary Liquidity Facility or a withdrawal from the Class G-1 Primary Cash Collateral Account or Class G-2 Primary Cash Collateral Account, as the case may be, hereunder; provided, that if any such amount constitutes an Election Interest Payment with respect to one or more Series G-1 Equipment Notes or Series G-2 Equipment Notes, such amount shall be paid directly to the Class G-1 Primary Liquidity Provider or Class G-2 Primary Liquidity Provider as reimbursement for such Interest Drawing or to the Class G-1 Primary Cash Collateral Account or the Class G-2 Primary Cash Collateral Account as replenishment for such withdrawal, as applicable and (iv) all payments received by the Subordination Agent in respect of an Above-Cap Withdrawal from any Above-Cap Account, and payable to (A) the Class G-1 Trustee on behalf of the G-1 Certificateholders, shall be promptly distributed to the Class G-1 Trustee, (B) the Class G-2 Trustee on behalf of the

 

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Class G-2 Certificateholders, shall be promptly distributed to the Class G-2 Trustee, and (C) the Class C Trustee on behalf of the Class C Certificateholders shall be promptly distributed to the Class C Trustee for application in each case to the payment of interest in respect of which it was drawn, except that if (x) the Subordination Agent shall receive any amount in respect of such Above-Cap Withdrawal to pay Accrued Class G-1 Interest or Accrued Class G-2 Interest after such Accrued Class G-1 Interest or Accrued Class G-2 Interest, as applicable, has been fully paid to the Class G-1 Trustee or Class G-2 Trustee, as applicable, by a Policy Drawing under the Policies pursuant to Section 3.7(a) hereof or (y) the Subordination Agent shall receive any amount in respect of a Policy Drawing under the Policies pursuant to Section 3.7(a) to fully pay Accrued Class G-1 Interest or Accrued Class G-2 Interest after such Accrued Class G-1 Interest or Accrued Class G-2 Interest has been paid (in full or in part) to the Class G-1 Trustee or Class G-2 Trustee by an Above-Cap Withdrawal, then an amount equal to such amount received in respect of such Above-Cap Withdrawal shall be paid directly to the Policy Provider as reimbursement of such Policy Drawing rather than to the Class G-1 Certificateholders or Class G-2 Certificateholders or the Class G-1 Trustee or Class G-2 Trustee.

 

(c)                                  Downgrade Drawings.  (i) Each Primary Liquidity Provider shall promptly, but in any event within 10 days of receipt of notice of a Downgrade Event with respect to it, deliver notice of such Downgrade Event to the Subordination Agent, the Policy Provider and JetBlue.  If at any time a Downgrade Event shall have occurred with respect to a Primary Liquidity Facility (the “Downgraded Facility”), such Primary Liquidity Provider or JetBlue may arrange for a Replacement Primary Liquidity Provider to issue and deliver a Replacement Primary Liquidity Facility to the Subordination Agent.  If a Downgraded Facility has not been replaced in accordance with the terms of this paragraph, the Subordination Agent shall, if it has actual knowledge of such Downgrade Event, on the 10th day following such downgrading or on the day it obtains actual knowledge of such Downgrade Event, if later (or if such day is not a Business Day, on the next succeeding Business Day), request a drawing in accordance with and to the extent permitted by such Downgraded Facility (such drawing, a “Downgrade Drawing”) of all available and undrawn amounts thereunder.  Amounts drawn pursuant to a Downgrade Drawing shall be maintained and invested as provided in Section 3.6(f) hereof.  The applicable Primary Liquidity Provider may also arrange for a Replacement Primary Liquidity Provider to issue and deliver a Replacement Primary Liquidity Facility at any time after such Downgrade Drawing so long as such Downgrade Drawing has not been reimbursed in full to such Liquidity Provider.

 

(ii)                                  If a “Termination Event” or an “Additional Termination Event” (each as defined in the Above-Cap Liquidity Facilities, each such event, a “Mandatory Termination Event”) shall occur under the Class G-1 Above-Cap Liquidity Facility, Class G-2 Above-Cap Liquidity Facility or Class C Above-Cap Liquidity Facility, the Class G-1 Above-Cap Liquidity Provider, Class G-2 Above-Cap Liquidity Provider or Class C Above-Cap Liquidity Provider, as applicable, shall provide notice of such Mandatory Termination Event in writing to JetBlue, the Subordination Agent, the Policy Provider, the Class G-1 Trustee, the Class G-2 Trustee and the Class C Trustee, and within the time period specified in such Above-Cap Liquidity Facility (but in no event later than the expiration date of such Above-Cap Liquidity Facility) JetBlue or such Above-Cap Liquidity Provider may, in each case at its own expense, arrange for one or more Replacement Above-Cap Liquidity Providers to issue and deliver a Replacement

 

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Above-Cap Liquidity Facility for such Above-Cap Liquidity Facility to the Subordination Agent.  In the event that such Above-Cap Liquidity Provider or JetBlue makes arrangements for a Replacement Above-Cap Liquidity Facility in accordance with the terms of such Above-Cap Liquidity Facility, (y) the Subordination Agent shall, if and to the extent so requested by such Above-Cap Liquidity Provider or JetBlue, execute and deliver any certificate or other instrument required to give effect to such replacement and (z) each of the parties hereto shall enter into any amendments to this Agreement necessary to give effect to such replacement.  If an Above-Cap Liquidity Facility is subject to a Mandatory Termination Event and has not been replaced in accordance with its terms and the terms of this paragraph or if an Early Termination Date (as defined in such Above-Cap Liquidity Facility) has been designated under such Above-Cap Liquidity Facility after the occurrence of an Event of Default (as defined in such Above-Cap Liquidity Facility), such Above-Cap Liquidity Facility shall be terminated and such Above-Cap Liquidity Provider shall, on such Early Termination Date, pay to the Subordination Agent, for the benefit of the Class G-1 Trustee, Class G-2 Trustee or Class C Trustee, as applicable, on behalf of the holders of the related Class of Certificates, the applicable Termination Amount for credit to the relevant Above-Cap Reserve Account, to be applied as provided in Section 3.6(f) hereof plus the amount of all other unpaid sums due and payable by such Above-Cap Liquidity Provider with respect to such Class of Certificates thereunder on or prior to such date, and upon such payment, such Above-Cap Liquidity Facility shall be terminated.  Nothing contained herein shall limit the rights of an Above-Cap Liquidity Provider to transfer its rights and obligations under its Above-Cap Liquidity Facility or otherwise arrange for a Replacement Above-Cap Liquidity Facility, subject to and in accordance with the provisions of such Above-Cap Liquidity Facility.

 

(d)                                 Non-Extension Drawings.  If any Primary Liquidity Facility with respect to the Class G-1 Certificates, Class G-2 Certificates or Class C Certificates is scheduled to expire on a date (the “Stated Expiration Date”) prior to the date that is 15 days after the Final Legal Distribution Date for such Class of Certificates, then, no earlier than the 60th day and no later than the 40th day prior to the then Stated Expiration Date, the Subordination Agent shall request that such Primary Liquidity Provider extend the Stated Expiration Date to the earlier of (i) the date that is 15 days after such Final Legal Distribution Date and (ii) the date that is the day immediately preceding the 364th day occurring after the last day of the applicable Consent Period (unless the obligations of such Primary Liquidity Provider thereunder are earlier terminated in accordance with such Primary Liquidity Facility).  Whether or not the Primary Liquidity Provider has received such request from the Subordination Agent, the Primary Liquidity Provider shall advise the Subordination Agent, no earlier than the 40th day (or, if earlier, the date of such Primary Liquidity Provider’s receipt of such request) and no later than the 25th day prior to the Stated Expiration Date then in effect for such Primary Liquidity Facility (such period, with respect to such Primary Liquidity Facility, the “Consent Period”), whether, in its sole discretion, it agrees to so extend the Stated Expiration Date.  If on or before the last day of such Consent Period, (A) such Primary Liquidity Facility shall not have been replaced in accordance with Section 3.6(e) and (B) such Primary Liquidity Provider (x) advises the Subordination Agent that such Stated Expiration Date shall not be so extended or (y) fails to irrevocably and unconditionally advise the Subordination Agent that such Stated Expiration Date shall be so extended, the Subordination Agent shall, on the last day of the Consent Period (or as

 

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soon as possible thereafter), in accordance with the terms of the expiring Primary Liquidity Facility (a “Non-Extended Facility”), request a drawing under such expiring Primary Liquidity Facility (such drawing, a “Non-Extension Drawing”) of the Available Amount thereunder.  Amounts drawn pursuant to a Non-Extension Drawing shall be maintained and invested in accordance with Section 3.6(f) hereof.

 

(e)                                  Issuance of Replacement Primary Liquidity Facility.  (i) At any time, JetBlue may, at its option, with cause or without cause, arrange for a Replacement Primary Liquidity Facility to replace any Primary Liquidity Facility for the Class G-1 Certificates, Class G-2 Certificates or Class C Certificates (including any Replacement Primary Liquidity Facility provided pursuant to Section 3.6(e)(ii) hereof); provided, however, that the initial Primary Liquidity Provider for any Primary Liquidity Facility shall not be replaced by JetBlue as a Primary Liquidity Provider with respect to such Primary Liquidity Facility prior to the third anniversary of the Closing Date unless (A) there shall have become due to such initial Primary Liquidity Provider, or such initial Primary Liquidity Provider shall have demanded, amounts pursuant to Section 3.01, 3.02 or 3.03 of any applicable Primary Liquidity Facility or the Tax Letter and the replacement of such initial Primary Liquidity Provider would reduce or eliminate the obligation to pay such amounts or JetBlue determines in good faith that there is a substantial likelihood that such initial Primary Liquidity Provider will have the right to claim any such amounts (unless such initial Primary Liquidity Provider waives, in writing, any right it may have to claim such amounts), which determination shall be set forth in a certificate delivered by JetBlue to such initial Primary Liquidity Provider setting forth the basis for such determination and accompanied by an opinion of outside counsel selected by JetBlue and reasonably acceptable to such initial Primary Liquidity Provider verifying the legal conclusions, if any, of such certificate relating to such basis, provided that, in the case of any likely claim for such amounts based upon any proposed, or proposed change in, law, rule, regulation, interpretation, directive, requirement, request or administrative practice, such opinion may assume the adoption or promulgation of such proposed matter, (B) it shall become unlawful or impossible for such initial Primary Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR Advances as described in Section 3.10 of any Primary Liquidity Facility, (C) any Primary Liquidity Facility of such initial Primary Liquidity Provider shall become a Downgraded Facility or a Non-Extended Facility or a Downgrade Drawing or a Non-Extension Drawing or a Special Termination Drawing shall have occurred under any Primary Liquidity Facility of such initial Primary Liquidity Provider; provided, that in the case of a Downgrade Drawing or Non-Extension Drawing, the initial Primary Liquidity Provider shall not be replaced by JetBlue if the initial Primary Liquidity Provider has given JetBlue not less than (x) 10 days’ written notice prior to any Downgrade Drawing under its Primary Liquidity Facility, and (y) 25 days’ written notice prior to any Non-Extension Drawing under its Primary Liquidity Facility, of its desire not to be replaced, or (D) such initial Primary Liquidity Provider shall have breached any of its payment (including, without limitation, funding) obligations under any Primary Liquidity Facility in respect of which it is the Primary Liquidity Provider.  If a Replacement Primary Liquidity Facility is provided at any time after a Downgrade Drawing, Non-Extension Drawing or a Special Termination Drawing has been made, all funds on deposit in the relevant Cash Collateral Account will be returned to the Primary Liquidity Provider being replaced.

 

(ii)                                  If any Primary Liquidity Provider shall determine not to extend any of its Primary Liquidity Facilities in accordance with Section 3.6(d), then such

 

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Primary Liquidity Provider may, at its option, arrange for a Replacement Primary Liquidity Facility to replace such Primary Liquidity Facility during the period no earlier than 40 days and no later than 25 days prior to the then effective Stated Expiration Date of such Primary Liquidity Facility.  At any time after a Non-Extension Drawing has been made under any Primary Liquidity Facility or at any time after the Primary Liquidity Provider has extended the Stated Expiration Date pursuant to Section 2.11 of the related Primary Liquidity Facility, the Primary Liquidity Provider thereunder may, at its option, arrange for a Replacement Primary Liquidity Facility to replace the Primary Liquidity Facility under which such Non-Extension Drawing or extension has been made.

 

(iii)                               No Replacement Primary Liquidity Facility arranged by JetBlue or a Primary Liquidity Provider in accordance with clause (i) or (ii) above or pursuant to Section 3.6(c), respectively, shall become effective and no such Replacement Primary Liquidity Facility shall be deemed a “Primary Liquidity Facility” under the Operative Agreements, unless and until (A) each of the conditions referred to in sub-clauses (iv)(w) and (y) below shall have been satisfied and (B) in the case of a Replacement Primary Liquidity Facility arranged by a Primary Liquidity Provider under Section 3.6(e)(ii) or pursuant to Section 3.6(c), such Replacement Primary Liquidity Facility is acceptable to JetBlue.

 

(iv)                              In connection with the issuance of each Replacement Primary Liquidity Facility, the Subordination Agent shall (w) prior to the issuance of such Replacement Primary Liquidity Facility, obtain written confirmation from each Rating Agency that such Replacement Primary Liquidity Facility will not cause a reduction of any rating then in effect for any Class of Certificates by such Rating Agency (without regard to any downgrading of any rating of any Primary Liquidity Provider being replaced pursuant to Section 3.6(c) hereof and without regard to the Policies) and, in the case of the Class G-1 Primary Liquidity Facility or Class G-2 Primary Liquidity Facility only, the written consent of the Policy Provider (which consent shall not be unreasonably withheld or delayed), (x) pay all Liquidity Obligations then owing to the replaced Primary Liquidity Provider (which payment shall be made first from available funds in the applicable Primary Cash Collateral Account as described in clause (vii) of Section 3.6(f) hereof, and thereafter from any other available source, including, without limitation, a drawing under the Replacement Primary Liquidity Facility), (y) cause the issuer of the Replacement Primary Liquidity Facility to deliver the Replacement Primary Liquidity Facility to the Subordination Agent, together with a legal opinion opining that such Replacement Primary Liquidity Facility is an enforceable obligation of such Replacement Primary Liquidity Provider and (z) if the Primary Liquidity Provider received a certified copy of the related Policy, cause the Primary Liquidity Provider being replaced to return such certified copy of the related Policy to the Policy Provider.

 

(v)                                 Upon satisfaction of the conditions set forth in clauses (iii) and (iv) of this Section 3.6(e) with respect to a Replacement Primary Liquidity Facility, (w) the replaced Primary Liquidity Facility shall terminate, (x) the Subordination Agent shall, if and to the extent so requested by JetBlue or the Primary Liquidity Provider being replaced, execute and deliver any certificate or other instrument required in order to terminate the replaced Primary Liquidity Facility, shall surrender the replaced Primary

 

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Liquidity Facility to the Primary Liquidity Provider being replaced and shall execute and deliver the Replacement Primary Liquidity Facility and any associated Fee Letter, (y) each of the parties hereto shall enter into any amendments to this Agreement necessary to give effect to (1) the replacement of the applicable Primary Liquidity Provider with the applicable Replacement Primary Liquidity Provider and (2) the replacement of the applicable Primary Liquidity Facility with the applicable Replacement Primary Liquidity Facility and (z) the applicable Replacement Primary Liquidity Provider shall be deemed to be a Primary Liquidity Provider with the rights and obligations of a Primary Liquidity Provider hereunder and under the other Operative Agreements and such Replacement Primary Liquidity Facility shall be deemed to be a Primary Liquidity Facility hereunder and under the other Operative Agreements.

 

(f)                                    Cash Collateral Accounts; Above-Cap Account Withdrawals; Withdrawals; Investments.  In the event the Subordination Agent shall draw all available amounts under the Class G-1 Primary Liquidity Facility, the Class G-2 Primary Liquidity Facility or the Class C Primary Liquidity Facility pursuant to Section 3.6(c), 3.6(d), 3.6(i) or 3.6(k) hereof, or in the event amounts are to be deposited in the Class G-1 Primary Cash Collateral Account, Class G-2 Primary Cash Collateral Account or the Class C Primary Cash Collateral Account pursuant to subclause (A) or (B) of clause “fourth” of Section 3.2, amounts so drawn or to be deposited, as the case may be, shall be deposited by the Subordination Agent in the Class G-1 Primary Cash Collateral Account, Class G-2 Primary Cash Collateral Account or the Class C Primary Cash Collateral Account, respectively.  If the Class G-1 Above-Cap Liquidity Provider, Class G-2 Above-Cap Liquidity Provider or Class C Above-Cap Liquidity Provider shall at any time make a Termination Amount payment under the related Above-Cap Liquidity Facility, such Termination Amount payment shall be deposited by the Subordination Agent in the related Above-Cap Reserve Account to be applied as specified below in this Section 3.6(f).  All amounts on deposit in each Cash Collateral Account shall be invested and reinvested in Eligible Investments in accordance with Section 2.2(b) hereof.

 

On each Interest Payment Date (or, in the case of any Special Distribution Date occurring as contemplated in Section 2.4(a) hereof (a “Special Payment Withdrawal”), on such Special Distribution Date), Investment Earnings on amounts on deposit in each Primary Cash Collateral Account (or, in the case of any Special Payment Withdrawal resulting from the redemption, purchase or prepayment of any Equipment Note prior to the occurrence of a payment default under any Indenture, a fraction of such Investment Earnings equal to the Section 2.4(a) Fraction) shall be deposited in the Collection Account (or, in the case of any Special Payment Withdrawal, the Special Payments Account) and applied on such Interest Payment Date (or Special Distribution Date, as the case may be) in accordance with Section 2.4, 3.2 or 3.4 (as applicable).  Investment Earnings on amounts on deposit in each Above-Cap Reserve Account shall be credited to such account and applied in the same manner as the Termination Amount payment credited thereto.  Investment Earnings on amounts on deposit in each Above-Cap Account shall be credited to such account and applied in the same manner as Above-Cap Payments credited thereto.  The Subordination Agent shall deliver a written statement to JetBlue, the Policy Provider and the Liquidity Providers, one day prior to each Interest Payment Date and Special Distribution Date setting forth the aggregate amount of Investment Earnings held in each of the Cash Collateral Accounts as of such date.  The Subordination Agent shall also deliver a written statement to JetBlue, the Policy Provider and the

 

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Above-Cap Liquidity Providers one day after each Distribution Date on which amounts have been deposited in an Above-Cap Account and/or deposited in or withdrawn from an Above-Cap Reserve Account setting forth the amount of such deposit and/or withdrawal.  In addition, from and after the date funds are so deposited, the Subordination Agent shall make withdrawals from such account as follows (provided that the Individual Drawn Percentage of any withdrawal specified in clause (i)(A), (ii)(A) or (iii)(A) below, together with the sum of (x) the Individual Drawn Percentages of unreimbursed withdrawals under clause (i)(A), (ii)(A) or (iii)(A), respectively, and (y) the Individual Drawn Percentages of any unreimbursed Interest Drawing made under the related Primary Liquidity Facility, shall not exceed one hundred percent):

 

(i)                                     on each Distribution Date, the Subordination Agent shall, to the extent it shall not have received funds to pay accrued and unpaid interest due and owing on the Class G-1 Certificates (at the Stated Interest Rate for the Class G-1 Certificates) after giving effect to the subordination provisions of this Agreement and any Election Interest Payment made by the Policy Provider, (A) withdraw from the Class G-1 Primary Cash Collateral Account, and pay to the Class G-1 Trustee, an amount equal to the lesser of (x) an amount necessary to pay accrued and unpaid interest (at the Stated Interest Rate for the Class G-1 Certificates) on such Class G-1 Certificates and (y) the amount on deposit in the Class G-1 Primary Cash Collateral Account, (B) withdraw from the Class G-1 Primary Cash Collateral Account and deposit in the Collection Account for application on such Distribution Date in accordance with clauses “fourth” through “sixteenth” of Section 3.2 hereof (as applicable), an amount equal to the lesser of (x) the excess, if any, of (i) the amount of interest that would have been withdrawn under clause (A)(x) of this paragraph (i) on such Distribution Date if interest were calculated at the Capped Interest Rate for the Class G-1 Certificates over (ii) the actual amount withdrawn under clause (A)(x) of this paragraph (i) on such Distribution Date (at the Stated Interest Rate for the Class G-1 Certificates) and (y) the amount on deposit in the Class G-1 Primary Cash Collateral Account and (C) if an “Above-Cap Payment” would have been required to be made on such Distribution Date pursuant to the terms of the Class G-1 Above-Cap Liquidity Facility were such Liquidity Facility still in effect, withdraw from the Class G-1 Above-Cap Reserve Account and deposit in the Class G-1 Above-Cap Account, an amount (if any) equal to the lesser of (x) an amount equal to such Above-Cap Payment and (y) the amount on deposit in the Class G-1 Above-Cap Reserve Account;

 

(ii)                                  on each Distribution Date, the Subordination Agent shall, to the extent it shall not have received funds to pay accrued and unpaid interest due and owing on the Class G-2 Certificates (at the Stated Interest Rate for the Class G-2 Certificates) after giving effect to the subordination provisions of this Agreement and any Election Interest Payment made by the Policy Provider, (A) withdraw from the Class G-2 Primary Cash Collateral Account, and pay to the Class G-2 Trustee, an amount equal to the lesser of (x) an amount necessary to pay accrued and unpaid interest (at the Stated Interest Rate for the Class G-2 Certificates) on such Class G-2 Certificates and (y) the amount on deposit in the Class G-2 Primary Cash Collateral Account, (B) withdraw from the Class G-2 Primary Cash Collateral Account and deposit in the Collection Account for application on such Distribution Date in accordance with clauses “fourth” through “sixteenth” of Section 3.2 hereof (as applicable), an amount equal to the lesser of (x) the

 

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excess, if any, of (i) the amount of interest that would have been withdrawn under clause (A)(x) of this paragraph (ii) on such Distribution Date if interest were calculated at the Capped Interest Rate for the Class G-2 Certificates over (ii) the actual amount withdrawn under clause (A)(x) of this paragraph (ii) on such Distribution Date (at the Stated Interest Rate for the Class G-2 Certificates) and (y) the amount on deposit in the Class G-2 Primary Cash Collateral Account and (C) if an “Above-Cap Payment” would have been required to be made on such Distribution Date pursuant to the terms of the Class G-2 Above-Cap Liquidity Facility were such Liquidity Facility still in effect, withdraw from the Class G-2 Above-Cap Reserve Account and deposit in the Class G-2 Above-Cap Account, an amount (if any) equal to the lesser of (x) an amount equal to such Above-Cap Payment and (y) the amount on deposit in the Class G-2 Above-Cap Reserve Account;

 

(iii)                               on each Distribution Date, the Subordination Agent shall, to the extent it shall not have received funds to pay Adjusted Interest due and owing on the Class C Certificates (at the Stated Interest Rate for the Class C Certificates) after giving effect to the subordination provisions of this Agreement, (A) withdraw from the Class C Primary Cash Collateral Account, and pay to the Class C Trustee, an amount equal to the lesser of (x) an amount necessary to pay Adjusted Interest (at the Stated Interest Rate for the Class C Certificates) on such Class C Certificates and (y) the amount on deposit in the Class C Primary Cash Collateral Account, (B) withdraw from the Class C Primary Cash Collateral Account and deposit in the Collection Account for application on such Distribution Date in accordance with clauses “fourth” through “sixteenth” of Section 3.2 hereof (as applicable), an amount equal to the lesser of (x) the excess, if any, of (i) the amount of Adjusted Interest that would have been withdrawn under clause (A)(x) of this paragraph (iii) on such Distribution Date if interest was calculated at the Capped Interest Rate for the Class C Certificates over (ii) the Adjusted Interest actually withdrawn under clause (A)(x) of this paragraph (iii) on such Distribution Date (at the Stated Interest Rate for the Class C Certificates) and (y) the amount on deposit in the Class C Primary Cash Collateral Account, and (C) if an “Above-Cap Payment” would have been required to be made on such Distribution Date pursuant to the terms of the Class C Above-Cap Liquidity Facility were such Liquidity Facility still in effect, withdraw from the Class C Above-Cap Reserve Account and deposit in the Class C Above-Cap Account, an amount (if any) equal to the lesser of (x) an amount equal to such Above-Cap Payment and (y) the amount on deposit in the Class C Above-Cap Reserve Account;

 

(iv)                              on each date on which the Pool Balance of the Class G-1 Trust shall have been reduced by payments made to the Class G-1 Certificateholders pursuant to Section 2.4, 2.7 or 3.2 hereof or pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such Class, the Subordination Agent shall withdraw from the Class G-1 Primary Cash Collateral Account such amount as is necessary so that, after giving effect to the reduction of the Pool Balance on such date and any transfer of Investment Earnings from such Primary Cash Collateral Account to the Collection Account or the Special Payments Account on such date, an amount equal to the sum of the Required Amount (with respect to the Class G-1 Primary Liquidity Facility) plus (if on a Special Distribution Date not coinciding with an Interest Payment Date) Investment Earnings on deposit in such Primary Cash Collateral Account will be on deposit in the

 

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Class G-1 Primary Cash Collateral Account and shall first, pay such withdrawn amount to the Class G-1 Primary Liquidity Provider until the Liquidity Obligations (with respect to the Class G-1 Certificates) owing to such Primary Liquidity Provider shall have been paid in full, and second, deposit any remaining withdrawn amount in the Collection Account;

 

(v)                                 on each date on which the Pool Balance of the Class G-2 Trust shall have been reduced by payments made to the Class G-2 Certificateholders pursuant to Section 2.4, 2.7 or 3.2 hereof or pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such Class, the Subordination Agent shall withdraw from the Class G-2 Primary Cash Collateral Account such amount as is necessary so that, after giving effect to the reduction of the Pool Balance on such date and any transfer of Investment Earnings from such Primary Cash Collateral Account to the Collection Account or the Special Payments Account on such date, an amount equal to the sum of the Required Amount (with respect to the Class G-2 Primary Liquidity Facility) plus (if on a Special Distribution Date not coinciding with an Interest Payment Date) Investment Earnings on deposit in such Primary Cash Collateral Account will be on deposit in the Class G-2 Primary Cash Collateral Account and shall first, pay such withdrawn amount to the Class G-2 Primary Liquidity Provider until the Liquidity Obligations (with respect to the Class G-2 Certificates) owing to such Primary Liquidity Provider shall have been paid in full, and second, deposit any remaining withdrawn amount in the Collection Account;

 

(vi)                              on each date on which the Preferred C Pool Balance with respect to the Class C Trust shall have been reduced as a result of payments made to the Class C Certificateholders pursuant to Section 2.4 or 3.2 hereof or pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for such Class or otherwise, the Subordination Agent shall withdraw from the Class C Primary Cash Collateral Account such amount as is necessary so that, after giving effect to the reduction of the Preferred C Pool Balance on such date and any transfer of Investment Earnings from such Primary Cash Collateral Account to the Collection Account or the Special Payments Account on such date, an amount equal to the sum of the Required Amount (with respect to the Class C Primary Liquidity Facility) plus (if such date is a Special Distribution Date not coinciding with an Interest Payment Date) Investment Earnings on deposit in such Primary Cash Collateral Account will be on deposit in the Class C Primary Cash Collateral Account and shall first, pay such withdrawn amount to the Class C Primary Liquidity Provider until the Liquidity Obligations (with respect to the Class C Certificates) owing to such Primary Liquidity Provider shall have been paid in full, and second, deposit any remaining withdrawn amount in the Collection Account;

 

(vii)                           if a Replacement Primary Liquidity Facility for any Class of Certificates shall be delivered to the Subordination Agent following the date on which funds have been deposited into the Primary Cash Collateral Account for such Class of Certificates, the Subordination Agent shall withdraw all amounts on deposit in such Primary Cash Collateral Account and shall pay such amounts to the replaced Primary Liquidity Provider until all Liquidity Obligations owed to such Person shall have been paid in full, and shall deposit any remaining amount in the Collection Account; and

 

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(viii)                        (A) following (i) the payment of Final Distributions with respect to any Class of Certificates or (ii) the reduction of the Preferred C Pool Balance to zero or (iii) the Final Legal Distribution Date for any Class of Certificates, on the date on which the Subordination Agent shall have been notified by the Primary Liquidity Provider for such Class of Certificates that the Liquidity Obligations owed to such Primary Liquidity Provider have been paid in full, or, if earlier, the first Business Day occurring immediately after the Final Legal Distribution Date for such Class of Certificates the Subordination Agent shall withdraw all amounts on deposit in the Primary Cash Collateral Account in respect of such Class of Certificates and shall deposit such amount in the Collection Account for distribution in accordance with Section 3.2 (without replenishment of such Primary Cash Collateral Account), and (B) on the first Business Day occurring immediately after the earlier of (i) the date of the payment of the Final Distribution with respect to any Class of Certificates and (ii) the Final Legal Distribution Date with respect to such Class of Certificates (after giving effect to all distributions to be made on such date), the Subordination Agent shall pay to the Above-Cap Liquidity Provider (that funded the amounts specified below) for such Class of Certificates in which either payment of the Final Distribution or the Final Legal Distribution Date has occurred an amount equal to the sum of the amounts (if any) on deposit in the Above-Cap Account and the Above-Cap Reserve Account for such Class of Certificates by wire transfer of funds to the account identified by the Above-Cap Liquidity Provider in writing to the Subordination Agent; it being understood and agreed that the Above-Cap Liquidity Provider shall receive such amount (if any) notwithstanding any termination of any Above-Cap Liquidity Facility in accordance with the terms thereof.

 

(g)                                 Reinstatement.  With respect to any Interest Drawing under any Primary Liquidity Facility, upon the reimbursement by the Subordination Agent of the applicable Primary Liquidity Provider for all or part of the amount of such Interest Drawing, together with any accrued interest thereon, the Available Amount of such Primary Liquidity Facility shall be recalculated and reinstated by an amount equal to the product of (i) the then Required Amount (calculated as if no Interest Drawing is outstanding), and (ii) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Drawings are reimbursed in the order in which they were made) in respect of principal of such Interest Drawing and the denominator of which is the Required Amount at the date of such Interest Drawing (calculated as if no Interest Drawing was then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date) but not to exceed the Stated Amount for such Primary Liquidity Facility; provided, however, that such Primary Liquidity Facility shall not be so reinstated in part or in full at any time if (x) both a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred and be continuing with respect to the relevant Primary Liquidity Facility or (y) a Final Drawing, Downgrade Drawing, Non-Extension Drawing or a Special Termination Drawing shall have occurred with respect to such Primary Liquidity Facility; provided, further, that any payment by the Policy Provider to a Primary Liquidity Provider of any amounts pursuant to the proviso of Section 2.6(c) shall not reinstate the related Primary Liquidity Facility, but such Primary Liquidity Facility (so long as it is in effect) shall be reinstated, pro tanto by an amount equal to the product of (i) the then Required Amount (calculated as if no Interest Drawing is outstanding), and (ii) a fraction, the numerator of which is the amount of such reimbursement (assuming that Interest Drawings are reimbursed in the order in which they were made) in respect of principal of such Interest Drawing and the denominator

 

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of which is the Required Amount at the date of such Interest Drawing (calculated as if no Interest Drawing was then outstanding and on the basis of the lower of the applicable Stated Interest Rate and the applicable Capped Interest Rate as of such date), to the extent the Policy Provider receives any reimbursement in respect of such payment under clause “fourth” of Section 3.2, unless (x) both a Performing Note Deficiency exists and a Liquidity Event of Default shall have occurred with respect to such Primary Liquidity Facility or (y) a Final Drawing, Downgrade Drawing, Non-Extension Drawing or a Special Termination Drawing shall have occurred with respect to such Primary Liquidity Facility.  In the event that, with respect to any particular Primary Liquidity Facility, (i) funds are withdrawn from any Primary Cash Collateral Account pursuant to clause (i), (ii) or (iii) of Section 3.6(f) hereof or (ii) such Primary Liquidity Facility shall become a Downgraded Facility or a Non-Extended Facility at a time when unreimbursed Interest Drawings under such Primary Liquidity Facility have reduced the Available Amount thereunder to zero, then funds received by the Subordination Agent at any time other than (x) any time when a Liquidity Event of Default shall have occurred and be continuing with respect to such Primary Liquidity Facility and a Performing Note Deficiency exists or (y) any time after a Final Drawing shall have occurred with respect to such Primary Liquidity Facility shall be deposited in such Primary Cash Collateral Account as and to the extent provided in clause “fourth” of Section 3.2 and applied in accordance with Section 3.6(f) hereof.

 

(h)                                 Reimbursement.  The amount of each drawing under the Primary Liquidity Facilities shall be due and payable, together with interest thereon, on the dates and at the rates, respectively, provided in the Primary Liquidity Facilities.  The Subordination Agent shall have no obligation to reimburse the Above-Cap Liquidity Providers for any Above-Cap Payments and the Above-Cap Liquidity Providers shall have no interest in any monies credited to any Trust Account except as provided in Section 3.6(f)(viii) hereof.

 

(i)                                     Final Drawing.  Upon receipt from a Primary Liquidity Provider of a Termination Notice with respect to any Primary Liquidity Facility, the Subordination Agent shall, not later than the date specified in such Termination Notice, in accordance with the terms of such Primary Liquidity Facility, request a drawing under such Primary Liquidity Facility of all available and undrawn amounts thereunder (a “Final Drawing”).  Amounts drawn pursuant to a Final Drawing shall be maintained and invested in accordance with Section 3.6(f) hereof.

 

(j)                                     Reduction of Stated Amount.  Promptly following each date on which the Required Amount of the Primary Liquidity Facility for a Class of Certificates is reduced as a result of (i) a reduction in the Pool Balance with respect to such Certificates (including by reason of Policy Provider Election) or (ii) with respect to the Primary Liquidity Facility for the Class C Certificates, a reduction of the Preferred C Pool Balance, the Stated Amount of such Primary Liquidity Facility shall be automatically reduced to an amount equal to the Required Amount with respect to such Primary Liquidity Facility (as calculated by the Subordination Agent after giving effect to such payment).

 

(k)                                  Special Termination Drawing.  Upon receipt from a Primary Liquidity Provider of a Special Termination Notice with respect to any Primary Liquidity Facility, the Subordination Agent shall, not later than the date specified in such Special Termination Notice, in accordance with the terms of such Primary Liquidity Facility, request a drawing under such Primary Liquidity Facility of all available and undrawn amounts thereunder (a “Special

 

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Termination Drawing”).  Amounts drawn pursuant to a Special Termination Drawing shall be maintained and invested in accordance with Section 3.6(f) hereof.

 

(l)                                     Relation to Subordination Provisions.  Interest Drawings under the Primary Liquidity Facilities and withdrawals from the Cash Collateral Accounts and the Above-Cap Accounts, in each case, in respect of interest on the Certificates of any Class, will be distributed to the Trustee for such Class of Certificates for distribution to Certificateholders of the related Class, notwithstanding Sections 3.2 and 3.6(h) hereof.

 

(m)                               Assignment of the Primary Liquidity Facility.  The Subordination Agent agrees not to consent to the assignment by any Primary Liquidity Provider of any of its rights or obligations under any Primary Liquidity Facility or any interest therein, unless (i) JetBlue shall have consented to such assignment, such consent to be within JetBlue’s sole discretion, (ii) each Rating Agency shall have provided a Ratings Confirmation in respect of such assignment and (iii) in the case of the Class G-1 Primary Liquidity Facility and Class G-2 Primary Liquidity Facility only, the Policy Provider shall have consented to such assignment (which consent shall not be unreasonably withheld or delayed), and, upon the satisfaction of the foregoing clauses (i), (ii) and (iii) (if applicable) and the provisions of Section 3.6(e)(iv), the Subordination Agent shall give such consent; provided that the foregoing is not intended to and shall not be construed to limit the rights of the Primary Liquidity Provider under Section 3.6(e).

 

Section 3.7.                                The Policies.  The following provisions of paragraphs (a) through (h) of this Section 3.7 shall apply to (i) the Class G-1 Trust and the Class G-1 Certificates and (ii) the Class G-2 Trust and the Class G-2 Certificates, as if such provisions are separately set forth in full for each of the Class G-1 Trust (and the Class G-1 Certificates) and the Class G-2 Trust (and the Class G-2 Certificates).  For the purposes of clause (i) above, each reference in paragraphs (a) through (h) of this Section 3.7 to “Above-Cap Account,” “Accrued Class G Interest,” “Class G Primary Cash Collateral Account,” “Class G Certificates,” “Class G Certificateholders,” “Class G Deposits,” “Class G Escrow Receipts,” “Class G Primary Liquidity Facility,” “Class G Primary Liquidity Provider,” “Class G Paying Agent Account,” “Class G Trust,” “Class G Trustee,” “Policy,” “Policy Account” and “Series G Equipment Note” shall mean “Class G-1 Above-Cap Account,” “Accrued Class G-1 Interest,” “Class G-1 Primary Cash Collateral Account,” “Class G-1 Certificates,” “Class G-1 Certificateholders,” “Class G-1 Deposits,” “Class G-1 Escrow Receipts,” “Class G-1 Primary Liquidity Facility,” “Class G-1 Primary Liquidity Provider,” “Class G-1 Paying Agent Account,” “Class G-1 Trust,” “Class G-1 Trustee,” “Class G-1 Policy,” “Class G-1 Policy Account” and “Series G-1 Equipment Note,” respectively.  For the purposes of clause (ii) above, each reference in paragraphs (a) through (h) of this Section 3.7 to “Above-Cap Account,” “Accrued Class G Interest,” “Class G Primary Cash Collateral Account,” “Class G Certificates,” “Class G Certificateholders,” “Class G Deposits,” “Class G Escrow Receipts,” “Class G Primary Liquidity Facility,” “Class G Primary Liquidity Provider,” “Class G Paying Agent Account,” “Class G Trust,” “Class G Trustee,” “Policy,” “Policy Account” and “Series G Equipment Note” shall mean “Class G-2 Above-Cap Account,” “Accrued Class G-2 Interest,” “Class G-2 Primary Cash Collateral Account,” “Class G-2 Certificates,” “Class G-2 Certificateholders,” “Class G-2 Deposits,” “Class G-2 Escrow Receipts,” “Class G-2 Primary Liquidity Facility,” “Class G-2 Primary Liquidity Provider,” “Class G-2 Paying Agent Account,” “Class G-2 Trust,” “Class G-2 Trustee,” “Class G-2 Policy,” “Class G-2 Policy Account” and “Series G-2 Equipment Note,” respectively.”

 

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(a)                                  Interest Drawings.  If on any Regular Distribution Date (other than the Final Legal Distribution Date) after giving effect to the application of available funds in accordance with the subordination provisions of this Agreement and to the application of Prior Funds, the Subordination Agent does not then have sufficient funds available for the payment of all amounts due and owing in respect of accrued and unpaid interest on the Class G Certificates at the Stated Interest Rate on the Pool Balance of the Class G Certificates on such Distribution Date (“Accrued Class G Interest”), then the Subordination Agent (i) prior to 1:00 p.m. (New York City time) on such Distribution Date shall deliver a Notice for Payment, as provided in the Policy, to the Policy Provider or its fiscal agent, requesting a Policy Drawing under the Policy (for payment into the Policy Account) in an amount sufficient to enable the Subordination Agent to pay such Accrued Class G Interest and (ii) upon receipt shall pay such amount from the Policy Account to the Class G Trustee or the Escrow Agent for deposit to the Class G Paying Agent Account, as the case may be, in payment of such Accrued Class G Interest on such Distribution Date.

 

(b)                                 Proceeds Deficiency Drawing.  If on any Special Distribution Date (which is not also an Election Distribution Date or a Special Distribution Date established pursuant to the second paragraph of Section 3.7(c)) established by the Subordination Agent by reason of its receipt of a Special Payment (other than a Special Payment arising from the purchase of any Series G Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 of this Agreement) constituting the proceeds of any Series G Equipment Note (as to which there has been a default in the payment of principal thereof or that has been Accelerated) or related Collateral (a “Disposition Payment”) and if on such Special Distribution Date after giving effect to the application of available funds (including, without limitation, the amount of such Disposition Payment) in accordance with the subordination provisions of this Agreement and to the application of Prior Funds, the Subordination Agent does not then have sufficient funds available for a reduction in the outstanding Pool Balance of the Class G Certificates by an amount equal to the outstanding principal amount of such Series G Equipment Note (determined immediately prior to the receipt of such proceeds and less any Policy Drawing previously paid by the Policy Provider in respect of principal of such Series G Equipment Note) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G Certificates for the period from the immediately preceding Regular Distribution Date to such Special Distribution Date, then the Subordination Agent (i) prior to 1:00 p.m. (New York City time) on such Special Distribution Date shall deliver a Notice for Payment, as provided in the Policy (for payment into the Policy Account) in an amount sufficient to enable the Subordination Agent to pay the amount of such reduction plus such accrued and unpaid interest on the amount of such reduction and (ii) upon receipt shall pay such amount from the Policy Account to the Class G Trustee in payment of such reduction in the outstanding Pool Balance of the Class G Certificates plus such accrued interest on the amount of such reduction on such Special Distribution Date; provided, however, that, notwithstanding anything to the contrary herein, the purchase of any Series G Equipment Notes by any or all of the Class C Certificateholders pursuant to Section 2.7 hereof shall not result in an amount that is payable by the Policy Provider under this Section 3.7(b) regardless of whether or not the proceeds of such purchase, together with any other available funds, are sufficient to reduce the Pool Balance of the Class G Certificates by an amount equal to the outstanding principal amount of such Series G Equipment Notes (determined immediately prior to the receipt of such proceeds and less the amount of any drawings previously paid by the Policy Provider in respect of principal on such Series G

 

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Equipment Notes) plus accrued and unpaid interest on the amount of such reduction at the Stated Interest Rate for the Class G Certificates from the period from the immediately preceding Regular Distribution Date to such Special Distribution Date.  The Subordination Agent shall promptly, but no less than 25 days prior to the Special Distribution Date established pursuant to this Section 3.7(b), send to JetBlue, the Trustees, the Liquidity Provider for the Class G Primary Liquidity Facility and the Policy Provider, a written notice of such Special Distribution Date.

 

(c)                                  No Proceeds Drawing.  If the Subordination Agent or the Class G Trustee, as the case may be, has not received a Special Payment constituting proceeds from the sale of a Series G Equipment Note or the related Collateral (including, without limitation, proceeds received in connection with the purchase by any or all of the Class C Certificateholders of any Series G Equipment Note pursuant to Section 2.7 of this Agreement) (a “Disposition”), as the case may be, during the 21-month period beginning on the last date on which any payment was made in full on such Series G Equipment Note (the date of such payment in full, the “Last Payment Date”) as to which there has been a failure to pay principal or that has been Accelerated subsequent to the Last Payment Date, then on the first Business Day following the expiration of such 21-month period, the Subordination Agent shall deliver a Notice for Payment, as provided in the Policy, to the Policy Provider or its fiscal agent, requesting a Policy Drawing under the Policy (for payment into the Policy Account) in an amount equal to the then outstanding principal amount of such Equipment Note plus accrued and unpaid interest thereon at the Stated Interest Rate for the Class G Certificates from the immediately preceding Regular Distribution Date to the below referred to Special Distribution Date.  The Subordination Agent shall promptly, but not less than 25 days prior to such Business Day, send to the Class G Trustee, JetBlue, the Class G Primary Liquidity Provider and the Policy Provider a Written Notice setting forth the non-receipt of any such Special Payment and establishing such Business Day as the date for the distribution of the proceeds of such Policy Drawing, which date shall constitute a Special Distribution Date.  No later than 1:00 p.m. (New York City time) on the specified Special Distribution Date the Subordination Agent shall make the specified Policy Drawing and upon its receipt of the proceeds thereof pay the amount thereof from the Policy Account to the Class G Trustee in reduction of the outstanding Pool Balance of the Class G Certificates together with such accrued and unpaid interest thereon.  For the avoidance of doubt, after the payment in full of such amount under this Section 3.7(c), the Subordination Agent shall have no right to make any further Policy Drawings under this Section 3.7(c) in respect of any Disposition of or in respect of such Equipment Note except for Avoided Payments as provided in Section 3.7(e).

 

Notwithstanding the foregoing, the Policy Provider, has the right at the end of any such 21-month period, so long as no Policy Provider Default shall have occurred and be continuing, by giving notice to the Subordination Agent at least five days prior to the end of such 21-month period, to elect (the “Policy Provider Election”) instead (A) to pay on such Special Distribution Date an amount equal to any shortfall in the scheduled principal and interest payable but not paid on such Series G Equipment Note (without regard to the Acceleration thereof) during such 21-month period (after giving effect to the application of funds received from the Class G Primary Liquidity Facility, the Class G Primary Cash Collateral Account and the Above-Cap Account, in each case attributable to such interest determined on a consistent basis), (B) thereafter, on each Regular Distribution Date until the establishment of an Election Distribution Date or a Special Distribution Date referred to in clause (C)(i) below, to permit drawings under the Policy for an amount equal to the scheduled principal (without regard to any

 

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acceleration thereof) and interest payments (without regard to any funds available under any Liquidity Facility or any Cash Collateral Account or the Above-Cap Account) at the Stated Interest Rate for the Class G Certificates payable on such Series G Equipment Note on the related payment date (each such interest payment, an “Election Interest Payment”) and (C) (i) on any Business Day (which shall be a Special Distribution Date) elected by the Policy Provider upon 20 days’ Written Notice to the Subordination Agent and the Class G Trustee to request the Subordination Agent, or (ii) following either the occurrence and continuation of a Policy Provider Default on any Business Day (which shall be a Special Distribution Date) specified by the Subordination Agent upon 20 days’ Written Notice to the Class G Trustee (each such Business Day in the case of clause (ii) an “Election Distribution Date”) to permit the Subordination Agent, in each case, to make a Policy Drawing for an amount equal to the then outstanding principal balance of such Equipment Note less any Policy Drawings previously paid by the Policy Provider in respect of principal of such Equipment Note and accrued and unpaid interest on such amounts at the Stated Interest Rate for the Class G Certificates from the immediately preceding Regular Distribution Date to such Election Distribution Date or such Special Distribution Date, as the case may be.  The Subordination Agent shall make each such drawing referred to in this paragraph under the Policy (for payment into the Policy Account) no later than 1:00 p.m. (New York City time) on each such date and upon its receipt of the proceeds thereof pay the amount thereof from the Policy Account to the Class G Trustee in reduction of the outstanding Pool Balance of the Class G Certificates together with such accrued and unpaid interest thereon.

 

In addition, regardless of whether or not the Policy Provider makes a Policy Provider Election, the Policy Provider shall, at the end of such 21-month period described in Section 3.7(c), endorse the Policy (if not already endorsed to so provide) to provide for the payment to the Class G Primary Liquidity Provider with respect to the Class G Certificates of interest accruing on the outstanding drawings in respect of the Class G Primary Liquidity Facility from and after the end of such 21-month period as and when such interest becomes due in accordance with the Class G Primary Liquidity Facility (“Excess Interest Policy Drawings”).  The Policy Provider hereby agrees not to otherwise amend or modify the Policy without the consent of the Class G Primary Liquidity Provider if such amendment or modification would adversely affect the rights of the Class G Primary Liquidity Provider.

 

(d)                                 Final Policy Drawing.  If on the Final Legal Distribution Date of the Class G Certificates after giving effect to the distribution of available funds in accordance with the subordination provisions of this Agreement and to the application of Prior Funds, the Subordination Agent does not then have sufficient funds available on such date for the payment in full of the Final Distributions (calculated as of such date but excluding any accrued and unpaid Additional Payments or other premium) on the Class G Certificates then the Subordination Agent shall (i) prior to 1:00 p.m. (New York City time) on such date deliver a Notice for Payment, as provided in the Policy, to the Policy Provider or its fiscal agent, requesting a Policy Drawing under the Policy (for payment into the Policy Account) in an amount equal to the minimum amount sufficient to enable the Subordination Agent to pay the Final Distributions (calculated as of such date but excluding any accrued and unpaid premium) on the Class G Certificates, and (ii) upon receipt pay such amount from the Policy Account to the Class G Trustee in payment of such amount on such date.

 

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If on the Final Withdrawal Date (as defined in the Escrow and Paying Agent Agreement for the Class G Certificates) the full amount of the Class G Deposits has not been used to purchase the Class G Equipment Notes and there is a shortfall in the amount available to the Paying Agent for the payment in full of the unpaid principal amount of the Class G Escrow Receipts then, prior to 1:00 p.m. (New York City time) on such date, the Subordination Agent shall: (i) deliver a Notice of Nonpayment, as provided in the Policy, to the Policy Provider or its fiscal agent, requesting a Policy Drawing under the Policy (for payment into the Policy Account) in an amount equal to the amount of such shortfall and (ii) shall pay such amount from the Policy Account to the Paying Agent for the Class G Trust in payment of such amount on such date.

 

(e)                                  Avoidance Drawings.  If at any time the Subordination Agent shall have actual knowledge of the issuance of any Final Order, the Subordination Agent shall promptly give notice thereof to each Trustee, the Primary Liquidity Providers and the Policy Provider.  The Subordination Agent shall thereupon calculate the amount of the relevant Avoided Payments resulting therefrom and shall promptly:  (a) send to the Class G Trustee a Written Notice of such amount and (b) prior to the expiration of the Policy, deliver to the Policy Provider or its fiscal agent a Notice of Avoided Payment, together with a copy of the documentation required by the Policy with respect thereto, requesting a Policy Drawing (for payment to the receiver, conservator, debtor-in-possession or trustee in bankruptcy and/or to the Subordination Agent for deposit into the Policy Account, as applicable) in an amount equal to the amount of the relevant Avoided Payment.  To the extent that any portion of such Avoided Payment is to be paid to the Subordination Agent, such Written Notice shall also set the date for the distribution of such portion of the proceeds of such Policy Drawing which date shall constitute a Special Distribution Date and shall be the earlier of the third Business Day that immediately precedes the date of the expiration of the Policy and the Business Day that immediately follows the 25th day after the date of such Written Notice.  No later than 1:00 p.m. (New York City time) on the third Business Day prior to the specified Special Distribution Date, the Subordination Agent shall make the specified Policy Drawing (as set forth in clause (b) above) and upon its receipt of any proceeds thereof, pay such amounts from the Policy Account to the Class G Trustee in reinstatement of the Avoided Payment.

 

(f)                                    Application of Policy Drawings.  Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, Sections 2.4 and 3.2 hereof), all payments received by the Subordination Agent in respect of a Policy Drawing (including, without limitation, that portion, if any, of the proceeds of a Policy Drawing for any Avoided Payment that is to be paid to the Subordination Agent and not to any receiver, conservator, debtor-in-possession or trustee in bankruptcy as provided in the Policy) shall be promptly paid from the Class G Policy Account to the Class G Trustee for distribution to the Class G Certificateholders or to the Escrow Agent for distribution to the holders of the Class G Escrow Receipts, as the case may be; provided, however, that any Election Interest Payment with respect to one or more Series G-1 Equipment Notes or Series G-2 Equipment Notes which are for interest that was previously paid pursuant to Interest Drawings that remain outstanding under the relevant Liquidity Facility shall be paid directly to the relevant Primary Liquidity Provider as reimbursement for such Interest Drawing or to the related Cash Collateral Account as replenishment for such withdrawal, as applicable, and any Excess Interest Policy Drawings shall be made directly to the applicable Primary Liquidity Provider.

 

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(g)                                 Limitation to Outstanding Pool Balance.  Notwithstanding anything to the contrary in this Section 3.7, except as provided in Section 3.7(e), at no time shall the Subordination Agent make any Policy Drawing under clause (b), (c) or (d) of this Section 3.7 in excess of the then outstanding Pool Balance of the Class G Certificates and accrued and unpaid interest at the Stated Interest Rate on the Class G Certificates.  Nothing contained in this Intercreditor Agreement shall alter or amend the liabilities, obligations, requirements or procedures of the Policy Provider under the Policy and the Policy Provider shall not be obligated to make payment except at the times and in the amounts and under the circumstances expressly set forth in the Policy.

 

(h)                                 Resubmission of Notice for Payment.  If the Policy Provider at any time informs the Subordination Agent in accordance with the Policy that a Notice for Payment or Notice of Avoided Payment submitted by the Subordination Agent does not meet the requirements of the Policy, the Subordination Agent shall, as promptly as possible after being so informed, submit to the Policy Provider an amended and revised Notice for Payment or Notice of Avoided Payment, as the case may be, and shall pay to the Class G Trustee out of the Policy Account the amount received pursuant to such amended or revised Notice for Payment or Notice of Avoided Payment, as the case may be, when received.

 

(i)                                     Subrogation.  The Policy Provider will be subrogated to all of the rights of the holders of the Class G Certificates to payment on the Class G Certificates to the extent of the payments made under the Policy as set forth herein, the exercise of such subrogation rights to be subject to the other provisions of this Agreement.

 

ARTICLE IV

EXERCISE OF REMEDIES

 

Section 4.1.                                Directions from the Controlling Party.  (a) (i) Following the occurrence and during the continuation of an Indenture Event of Default under any Indenture, the Controlling Party shall direct the Subordination Agent, which in turn shall direct the Loan Trustee under such Indenture, in the exercise of remedies available to the holders of the Equipment Notes issued pursuant to such Indenture, including, without limitation, the ability to vote all such Equipment Notes in favor of Accelerating such Equipment Notes in accordance with the provisions of such Indenture.  Subject to the provisions of the next paragraph, if the Equipment Notes issued pursuant to any Indenture have been Accelerated following an Indenture Event of Default with respect thereto, the Controlling Party may direct the Subordination Agent to sell, assign, contract to sell or otherwise dispose of and deliver all (but not less than all) of such Equipment Notes to any Person at public or private sale, at any location at the option of the Controlling Party, all upon such terms and conditions as it may reasonably deem advisable in accordance with applicable law.

 

(ii)                                  Notwithstanding the foregoing, so long as any Certificates remain Outstanding, during the period from the occurrence of an Indenture Event of Default and ending on the date which is nine months after the earlier of (x) the acceleration of the Equipment Notes under such Indenture or (y) the occurrence of a JetBlue Bankruptcy Event, without the consent of each Trustee, (A) no Aircraft subject to the Lien of such

 

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Indenture or Equipment Notes issued under such Indenture may be sold if the net proceeds from such sale would be less than the Minimum Sale Price for such Aircraft or such Equipment Notes and (B) no Aircraft subject to the Lien of such Indenture may be leased unless either (x) the rent payments under such lease are sufficient to pay in full the scheduled payments of principal and interest on the Equipment Notes issued under such Indenture that become due during the term of such lease or (y) the term of such lease (including any renewal option exercisable by the lessee) does not exceed one year.

 

(iii)                               With respect to any Indenture and subject to Section 4.1(a)(v), upon (x) the occurrence of a payment default under such Indenture, (y) the commencement of the exercise of remedies under such Indenture or (z) the occurrence of a Triggering Event, the Subordination Agent will, unless any such event described in clause (x) ceases to be in effect, obtain three desktop appraisals from the Appraisers selected by the Controlling Party setting forth the current market value, current lease rate and distress value of the aircraft (in each case, as defined by ISTAT) subject to such Indenture (each such appraisal, an “Appraisal” and the current market value appraisals being referred to herein as the “Post-Default Appraisals”).  For so long as any event set forth in clauses (x), (y) or (z) above shall be continuing, the Subordination Agent will obtain updated Appraisals on the date that is 364 days from the date of the most recent Appraisal and if a JetBlue Bankruptcy Event shall have occurred and is continuing, on the date that is 180 days from the date of the most recent Appraisal.

 

(iv)                              If (x) on any Regular Distribution Date the Subordination Agent has insufficient funds to make the scheduled payments of principal and interest distributable on the Certificates and (y) a Triggering Event has occurred, the Subordination Agent will, subject to Section 4.1(a)(v), obtain Appraisals for each of the Aircraft and shall obtain additional Appraisals annually thereafter.

 

(v)                                 After the Subordination Agent has requested the Appraisers to deliver the initial Appraisals, the Reserve Account will be funded initially up to the Reserve Amount from amounts distributed under clause “first” of Section 3.2 hereof.  The Subordination Agent shall have the right to withdraw funds from the Reserve Account to pay for the initial and any subsequent Appraisals and the Reserve Account will be replenished up to the Reserve Amount pursuant to clause “first” of Section 3.2 hereof; provided, that, except for the initial funding of the Reserve Account up to the Reserve Amount, no more than $25,000 will be deposited in the Reserve Account in any calendar year and no more than $75,000 shall be on deposit in the Reserve Account at any time.

 

(b)                                 Following the occurrence and during the continuation of an Indenture Event of Default, the Controlling Party shall take or shall cause the Subordination Agent to take such actions as it may reasonably deem most effectual to complete the sale or other disposition of such Aircraft or Equipment Notes.  In addition, in lieu of any sale, assignment, contract to sell or other disposition, the Controlling Party may maintain or cause the Subordination Agent to maintain possession of such Equipment Notes and continue to apply monies received in respect of such Equipment Notes in accordance with Article III hereof.  In addition, in lieu of such sale, assignment, contract to sell or other disposition, or in lieu of such maintenance of possession, the

 

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Controlling Party may, subject to the terms and conditions of the related Indenture, instruct the Loan Trustee under such Indenture to foreclose on the Lien on the related Aircraft or to take any other remedial action permitted under such Indenture or under any applicable law.

 

Section 4.2.                                Remedies Cumulative.  Each and every right, power and remedy given to the Trustees, the Liquidity Providers, the Policy Provider, the Controlling Party or the Subordination Agent specifically or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may, subject always to the terms and conditions hereof, be exercised from time to time and as often and in such order as may be deemed expedient by any Trustee, any Liquidity Provider, the Policy Provider, the Controlling Party or the Subordination Agent, as appropriate, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy.  No delay or omission by any Trustee, any Liquidity Provider, the Policy Provider, the Controlling Party or the Subordination Agent in the exercise of any right, remedy or power or in the pursuit of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default or to be an acquiescence therein.

 

Section 4.3.                                Discontinuance of Proceedings.  In case any party to this Agreement (including the Controlling Party in such capacity) shall have instituted any Proceeding to enforce any right, power or remedy under this Agreement by foreclosure, entry or otherwise, and such Proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Person instituting such Proceeding, then and in every such case each such party shall, subject to any determination in such Proceeding, be restored to its former position and rights hereunder, and all rights, remedies and powers of such party shall continue as if no such Proceeding had been instituted.

 

Section 4.4.                                Right of Certificateholders to Receive Payments Not to Be Impaired.  Anything in this Agreement to the contrary notwithstanding but subject to each Trust Agreement, the right of any Certificateholder, the Primary Liquidity Provider or the Policy Provider, respectively, to receive payments hereunder (including without limitation pursuant to Section 2.4 or 3.2 hereof) when due, or to institute suit for the enforcement of any such payment on or after the applicable Distribution Date, shall not be impaired or affected without the consent of such Certificateholder, Primary Liquidity Provider or Policy Provider, respectively.

 

Section 4.5.                                Undertaking for Costs.  In any Proceeding for the enforcement of any right or remedy under this Agreement or in any Proceeding against any Controlling Party or the Subordination Agent for any action taken or omitted by it as Controlling Party or Subordination Agent, as the case may be, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  The provisions of this Section do not apply to a suit instituted by the Subordination Agent, a Liquidity Provider, the Policy Provider or a Trustee or a suit by Certificateholders holding more than 10% of the original principal amount of any Class of Certificates.

 

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ARTICLE V

DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES, ETC.

 

Section 5.1.                                Notice of Indenture Default, Indenture Event of Default or Triggering Event.  (a) In the event the Subordination Agent shall have actual knowledge of the occurrence of an Indenture Default, Indenture Event of Default or a Triggering Event, as promptly as practicable, and in any event within 10 days after obtaining knowledge thereof, the Subordination Agent shall transmit by mail or courier to the Rating Agencies, the Liquidity Providers, the Policy Provider and the Trustees notice of such Indenture Default, Indenture Event of Default or Triggering Event, unless such Indenture Default, Indenture Event of Default or Triggering Event shall have been cured or waived by the Controlling Party.  For all purposes of this Agreement, in the absence of actual knowledge on the part of a Responsible Officer, the Subordination Agent shall not be deemed to have knowledge of any Indenture Default, Indenture Event of Default or Triggering Event unless notified in writing by one or more Trustees, one or more Liquidity Providers, the Policy Provider or one or more Certificateholders.

 

(b)                                 Other Notices.  The Subordination Agent will furnish to each Liquidity Provider, the Policy Provider and each Trustee, promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and other instruments furnished to the Subordination Agent as registered holder of the Equipment Notes or otherwise in its capacity as Subordination Agent to the extent the same shall not have been otherwise directly distributed to such Liquidity Provider, Policy Provider or Trustee, as applicable, pursuant to the express provision of any other Operative Agreement.

 

(c)                                  Securities Position.  Upon the occurrence of an Indenture Event of Default, the Subordination Agent shall instruct the Trustees to, and the Trustees shall, request that DTC post on its Internet bulletin board a securities position listing setting forth the names of all the parties reflected on DTC’s books as holding interests in the certificates.

 

(d)                                 Reports. Promptly after the occurrence of a Triggering Event or an Indenture Event of Default resulting from the failure of JetBlue to make payments on any Equipment Note and on every Regular Distribution Date while the Triggering Event or such Indenture Event of Default shall be continuing, the Subordination Agent will provide to the Trustees, Liquidity Providers, Policy Provider, Rating Agencies and JetBlue a statement, substantially in the form of Exhibit A hereto, setting forth the following information:

 

(i)                                     after a JetBlue Bankruptcy Event, with respect to each Aircraft, whether such Aircraft is (A) subject to the 60-day period of Section 1110 of the Bankruptcy Code, (B) subject to an election by JetBlue under Section 1110(a) of the Bankruptcy Code; (C) covered by an agreement contemplated by Section 1110(b) of the Bankruptcy Code or (D) not subject to any of (A), (B) or (C);

 

(ii)                                  to the best of the Subordination Agent’s knowledge, after requesting such information from JetBlue, (A) whether the Aircraft are currently in service or parked in storage, (B) the maintenance status of the Aircraft and (C) location of the Engines (as defined in the Indentures);

 

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(iii)                               the current Pool Balance of each Class of Certificates and outstanding principal amount of all Equipment Notes;

 

(iv)                              the expected amount of interest which will have accrued on the Equipment Notes and on the Certificates as of the next Regular Distribution Date;

 

(v)                                 the amounts paid to each person on such Distribution Date pursuant to this Agreement;

 

(vi)                              details of the amounts paid on such Distribution Date identified by reference to the relevant provision of this Agreement and the source of payment (by Aircraft and party);

 

(vii)                           if any Primary Liquidity Provider has made a Final Advance;

 

(viii)                        the amounts currently owed to any Primary Liquidity Provider;

 

(ix)                                the amounts drawn under each Liquidity Facility by Class;

 

(x)                                   the amounts owed to the Policy Provider; and

 

(xi)                                after a JetBlue Bankruptcy Event, any operational reports filed by JetBlue with the Bankruptcy Court which are available to the Subordination Agent on a non-confidential basis.

 

Section 5.2.                                Indemnification.  The Subordination Agent shall not be required to take any action or refrain from taking any action under Article IV hereof unless the Subordination Agent shall have been indemnified (to the extent and in the manner reasonably satisfactory to the Subordination Agent) against any liability, cost or expense (including counsel fees and expenses) which may be incurred in connection therewith.  The Subordination Agent shall not be under any obligation to take any action under this Agreement and nothing contained in this Agreement shall require the Subordination Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.  The Subordination Agent shall not be required to take any action under Article IV hereof, nor shall any other provision of this Agreement be deemed to impose a duty on the Subordination Agent to take any action, if the Subordination Agent shall have been advised by counsel that such action is contrary to the terms hereof or is otherwise contrary to law.

 

Section 5.3.                                No Duties Except as Specified in Intercreditor Agreement.  The Subordination Agent shall not have any duty or obligation to take or refrain from taking any action under, or in connection with, this Agreement, except as expressly provided by the terms of this Agreement; and no implied duties or obligations shall be read into this Agreement against the Subordination Agent.  The Subordination Agent agrees that it will, in its individual capacity and at its own cost and expense (but without any right of indemnity in respect of any such cost or expense under Section 7.1 hereof) promptly take such action as may be necessary to duly discharge all Liens on any of the Trust Accounts or any monies deposited therein which result

 

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from claims against it in its individual capacity not related to its activities hereunder or any other Operative Agreement.

 

Section 5.4.                                Notice from the Liquidity Providers and Trustees.  If any Liquidity Provider or any Trustee has notice of an Indenture Event of Default or a Triggering Event, such Person shall promptly give notice thereof to all of the other parties hereto, provided, however, that no such Person shall have any liability hereunder as a result of its failure to deliver any such notice.

 

Section 5.5.                                Agreements Relating to the Above-Cap Liquidity Facility.  Each of the Subordination Agent and the Trustees agree at the request of any Above-Cap Liquidity Provider to use reasonable efforts (consistent with applicable legal and regulatory restrictions) to take any action that would avoid the need for, or reduce the amount of, any payment under Section 2(d) of the ISDA Master Agreement forming part of the related Above-Cap Liquidity Facility; provided that any such action would not, in the reasonable judgment of such Person, be materially disadvantageous to it.  Notwithstanding anything to the contrary contained herein, but without limiting, and subject to, the rights of the Subordination Agent hereunder, the obligation of any Above-Cap Liquidity Provider to make any Above-Cap Payment or pay any Termination Amount shall be governed exclusively by the applicable Above-Cap Liquidity Facility.

 

ARTICLE VI

THE SUBORDINATION AGENT

 

Section 6.1.                                Authorization; Acceptance of Trusts and Duties.  Each of the Class G-1 Trustee, the Class G-2 Trustee and the Class C Trustee hereby designates and appoints the Subordination Agent as the agent and trustee of such Trustee under the applicable Liquidity Facility (and, in the case of the Class G-1 Trustee and the Class G-2 Trustee, the Policy Provider Agreement) and authorizes the Subordination Agent to enter into the applicable Liquidity Facility (and, in the case of the Class G-1 Trustee and the Class G-2 Trustee, the Policy Provider Agreement) as agent and trustee for such Trustee.  Each of the Liquidity Providers, the Policy Provider and the Trustees hereby designates and appoints the Subordination Agent as the Subordination Agent under this Agreement.  WTC hereby accepts the duties hereby created and applicable to it as the Subordination Agent and agrees to perform the same but only upon the terms of this Agreement and agrees to receive and disburse all monies received by it in accordance with the terms hereof.  The Subordination Agent shall not be answerable or accountable under any circumstances, except (a) for its own willful misconduct or gross negligence (or ordinary negligence in the handling of funds actually received by it in accordance with the terms hereof or any Operative Agreement), (b) as provided in Sections 2.2 and 5.3 hereof and (c) for liabilities that may result from the inaccuracy of any representation or warranty of the Subordination Agent made in its individual capacity in any Operative Agreement.  The Subordination Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Subordination Agent, unless it is proved that the Subordination Agent was negligent in ascertaining the pertinent facts.

 

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Section 6.2.                                Absence of Duties.  The Subordination Agent shall have no duty to see to any recording or filing of this Agreement or any other document, or to see to the maintenance of any such recording or filing, unless otherwise provided for in the Operative Agreements.

 

Section 6.3.                                No Representations or Warranties as to Documents.  The Subordination Agent in its individual capacity does not make nor shall be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Agreement or any other Operative Agreement or as to the correctness of any statement contained in any thereof, except for the representations and warranties of the Subordination Agent, made in its individual capacity, under any Operative Agreement to which it is a party.  The Certificateholders, the Trustees, the Liquidity Providers and the Policy Provider make no representation or warranty hereunder whatsoever.

 

Section 6.4.                                No Segregation of Monies; No Interest.  Any monies paid to or retained by the Subordination Agent pursuant to any provision hereof and not then required to be distributed to any Trustee, any Liquidity Provider or the Policy Provider as provided in Articles II and III hereof or deposited into one or more Trust Accounts need not be segregated in any manner except to the extent required by such Articles II and III and by law, and the Subordination Agent shall not (except as otherwise provided in Section 2.2 hereof) be liable for any interest thereon; provided, however, that any payments received or applied hereunder by the Subordination Agent shall be accounted for by the Subordination Agent so that any portion thereof paid or applied pursuant hereto shall be identifiable as to the source thereof.

 

Section 6.5.                                Reliance; Agents; Advice of Counsel.  The Subordination Agent shall not incur liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties.  As to the Pool Balance of any Trust as of any date, the Subordination Agent may for all purposes hereof rely on a certificate signed by any Responsible Officer of the applicable Trustee, and such certificate shall constitute full protection to the Subordination Agent for any action taken or omitted to be taken by it in good faith in reliance thereon.  As to any fact or matter relating to the Liquidity Providers, the Policy Provider or the Trustees the manner of ascertainment of which is not specifically described herein, the Subordination Agent may for all purposes hereof rely on a certificate, signed by any Responsible Officer of the applicable Liquidity Provider, Policy Provider or Trustee, as the case may be, as to such fact or matter, and such certificate shall constitute full protection to the Subordination Agent for any action taken or omitted to be taken by it in good faith in reliance thereon.  The Subordination Agent shall assume, and shall be fully protected in assuming, that each of the Liquidity Providers, the Policy Provider and each of the Trustees are authorized to enter into this Agreement and to take all action to be taken by them pursuant to the provisions hereof, and shall not inquire into the authorization of each of the Liquidity Providers, the Policy Provider and Trustees with respect thereto.  In the administration of the trusts hereunder, the Subordination Agent may execute any of the trusts or powers hereof and perform its powers and duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it, and the Subordination Agent shall not be liable for the acts or omissions of any agent selected and appointed with due care or for anything done, suffered or omitted in good faith by it in

 

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accordance with the advice or written opinion of any such counsel, accountants or other skilled persons.

 

Section 6.6.                                Capacity in Which Acting.  The Subordination Agent acts hereunder solely as agent and trustee herein and not in its individual capacity, except as otherwise expressly provided in the Operative Agreements.

 

Section 6.7.                                Compensation.  The Subordination Agent shall be entitled to reasonable compensation, including reimbursement for reasonable expenses and disbursements, except with respect to any Unindemnified Taxes incurred by the Subordination Agent in connection with the transactions contemplated by this Agreement for all services rendered hereunder and shall have a priority claim to the extent set forth in Article III hereof on all monies collected hereunder for the payment of such compensation (other than any Unindemnified Taxes), to the extent that such compensation shall not be paid by others.  The Subordination Agent agrees that it shall have no right against any Trustee, Liquidity Provider or the Policy Provider for any fee as compensation for its services as agent under this Agreement.  The provisions of this Section 6.7 shall survive the termination of this Agreement.

 

Section 6.8.                                [Intentionally Omitted.]

 

Section 6.9.                                Subordination Agent Required; Eligibility.  There shall at all times be a Subordination Agent hereunder which shall be a bank, trust company, corporation or other financial institution organized and doing business under the laws of the United States of America or of any State or the District of Columbia having a combined capital and surplus of at least $100,000,000 (or the obligations of which, whether now in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States of America, any State thereof or of the District of Columbia and having a combined capital and surplus of at least $100,000,000), if there is such an institution willing and able to perform the duties of the Subordination Agent hereunder upon reasonable or customary terms.  Such Person shall be a citizen of the United States and shall be authorized under the laws of the United States or any State thereof or of the District of Columbia to exercise corporate trust powers and shall be subject to supervision or examination by federal, state or District of Columbia authorities.  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any of the aforesaid supervising or examining authorities, then, for the purposes of this Section 6.9, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

 

In case at any time the Subordination Agent shall cease to be eligible in accordance with the provisions of this Section, the Subordination Agent shall resign immediately in the manner and with the effect specified in Section 8.1.

 

Section 6.10.                         Money to Be Held in Trust.  All Equipment Notes, monies and other property deposited with or held by the Subordination Agent pursuant to this Agreement shall be held in trust for the benefit of the parties entitled to such Equipment Notes, monies and other property.  All such Equipment Notes, monies or other property shall be held in the Trust Department of the institution acting as Subordination Agent hereunder.

 

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ARTICLE VII

INDEMNIFICATION OF SUBORDINATION AGENT

 

Section 7.1.                                Scope of Indemnification.  The Subordination Agent shall be indemnified hereunder to the extent and in the manner described in Section 7.1 of the Participation Agreements and Section 6 of the Note Purchase Agreement.  The indemnities contained in such Sections of such agreements shall survive the resignation or removal of the Subordination Agent and the termination of this Agreement.

 

ARTICLE VIII

SUCCESSOR SUBORDINATION AGENT

 

Section 8.1.                                Replacement of Subordination Agent; Appointment of Successor.  The Subordination Agent may resign at any time by so notifying each Trustee, each Liquidity Provider and the Policy Provider.  The Controlling Party may remove the Subordination Agent for cause by so notifying the Subordination Agent and may appoint a successor Subordination Agent.  The Controlling Party shall remove the Subordination Agent if:

 

(1)                                  the Subordination Agent fails to comply with Section 6.9 hereof;

 

(2)                                  the Subordination Agent is adjudged bankrupt or insolvent or files a bankruptcy petition;

 

(3)                                  a receiver or other public officer takes charge of the Subordination Agent or its property; or

 

(4)                                  the Subordination Agent otherwise becomes incapable of acting.

 

If the Subordination Agent resigns or is removed or if a vacancy exists in the office of Subordination Agent for any reason (the Subordination Agent in such event being referred to herein as the retiring Subordination Agent), the Controlling Party shall promptly appoint a successor Subordination Agent.

 

A successor Subordination Agent shall deliver (x) a written acceptance of its appointment as Subordination Agent hereunder to the retiring Subordination Agent and (y) a written assumption of its obligations hereunder and under each Liquidity Facility and the Policy Provider Agreement to each party hereto, upon which the resignation or removal of the retiring Subordination Agent shall become effective, and the successor Subordination Agent shall have all the rights, powers and duties of the Subordination Agent under this Agreement.  The successor Subordination Agent shall mail a notice of its succession to the Liquidity Providers, the Policy Provider and the Trustees.  The retiring Subordination Agent shall promptly transfer its rights under each of the Liquidity Facilities and all of the property held by it as Subordination Agent to the successor Subordination Agent.

 

If a successor Subordination Agent does not take office within 60 days after the retiring Subordination Agent resigns or is removed, the retiring Subordination Agent or one or more of

 

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the Trustees may petition any court of competent jurisdiction for the appointment of a successor Subordination Agent.

 

If the Subordination Agent fails to comply with Section 6.9 hereof (to the extent applicable), one or more of the Trustees, one or more of the Liquidity Providers or the Policy Provider may petition any court of competent jurisdiction for the removal of the Subordination Agent and the appointment of a successor Subordination Agent.

 

Notwithstanding the foregoing, no resignation or removal of the Subordination Agent shall be effective unless and until a successor has been appointed.  No appointment of a successor Subordination Agent shall be effective unless and until the Rating Agencies shall have delivered a Ratings Confirmation and, so long as no Policy Provider Default has occurred and is continuing, the Policy Provider shall have consented to such successor Subordination Agent.

 

ARTICLE IX

SUPPLEMENTS AND AMENDMENTS

 

Section 9.1.                                Amendments, Waivers, Etc.  (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(ii)(z) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 9.1(a), with the consent of holders of Certificates of the related Class evidencing interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement), the Subordination Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee or the Liquidity Providers if such supplement, amendment or modification cures an ambiguity or inconsistency or does not materially, adversely affect such Trustee or the holders of the related Class of Certificates or any Liquidity Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) directly or indirectly modify or supersede, or otherwise conflict with, Section 2.2(b), Section 2.4(a), Section 2.4(b), Section 3.2, Section 3.4, Section 3.6(e), Section 3.6(f), Section 3.6(l), the last sentence of this Section 9.1(a), the second sentence of Section 10.6 or this proviso (collectively, the “JetBlue Provisions”) or (y) otherwise adversely affect the interests of a potential Replacement Primary Liquidity Provider or of JetBlue with respect to its ability to replace any Primary Liquidity Facility or with respect to its payment obligations under any Operative Agreement or (B) is made pursuant to the last sentence of this Section 9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of JetBlue.  Notwithstanding the foregoing, without the consent of each Certificateholder and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith, (ii) except as provided in the last sentence of this Section 9.1(a), modify Section 2.4 or 3.2 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities or either

 

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Policy or (iii) modify the definition of “Reserve Amount”.  Nothing contained in this Section shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates.  If the Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Primary Liquidity Facility”, then each of the parties hereto agrees to amend this Agreement to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for an individual Trust.

 

(b)                                 In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, modification, supplement, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each Series of such Equipment Notes from the Trustee of the Trust which holds such series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G-1 Certificates and Class G-2 Certificates has not been made or any Policy Provider Amounts remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G-1 Trustee with respect to the Series G-1 Equipment Notes held in the Class G-1 Trust or the Class G-2 Trustee with respect to the Series G-2 Equipment Notes held in the Class G-2 Trust and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.1 and 4.4 hereof, provided that no such amendment, modification or waiver shall, without the consent of each affected Certificateholder and each Liquidity Provider and the Policy Provider (w) reduce the amount of principal or interest payable by JetBlue under any Equipment Note issued under any Indenture or amend Schedule I of any Indenture, (x) modify any of the provisions of Section 10.01, or of Article II or III or Section 5.01, 5.02(c), 5.02(d), 6.01 or 6.02 of any Indenture, the definitions of “Collateral,” “Event of Default,” “Default,” “Majority in Interest of Note Holders,” “Three-Month LIBOR,” “Break Amount,” “Prepayment Premium” or “Note Holder,” or the percentage of Note Holders required to take or approve any action under the Indentures, (y) reduce, modify or amend any indemnities in favor of the Loan Trustee or the Note Holders (except that the Loan Trustee may consent to any waiver or reduction of an indemnity payable to it), or (z) permit the creation of any Lien on the Collateral (as defined in the relevant Indenture) or any part thereof other than Permitted Liens (as defined in the Indentures) or deprive any Note Holder of the benefit of the Lien of such Indenture on the Collateral, except as provided in connection with the exercise of remedies under such Indenture.

 

Section 9.2.                                Subordination Agent Protected.  If, in the reasonable opinion of the institution acting as the Subordination Agent hereunder, any document required to be executed pursuant to the terms of Section 9.1 adversely affects any right, duty, immunity or indemnity with respect to it under this Agreement, any Liquidity Facility or the Policy, the Subordination Agent may in its discretion decline to execute such document.

 

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Section 9.3.                                Effect of Supplemental Agreements.  Upon the execution of any amendment, consent or supplement hereto pursuant to the provisions hereof, this Agreement shall be and be deemed to be and shall be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Agreement of the parties hereto and beneficiaries hereof shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental agreement shall be and be deemed to be and shall be part of the terms and conditions of this Agreement for any and all purposes.  In executing or accepting any supplemental agreement permitted by this Article IX, the Subordination Agent shall be entitled to receive at its cost, and shall be fully protected in relying upon, an opinion of counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement.

 

Section 9.4.                                Notice and Information to Rating Agencies.  (a)  The Subordination Agent shall (i) promptly following its receipt of each amendment, consent, modification, supplement or waiver contemplated by this Article IX, send a copy thereof to each Rating Agency, each Primary Liquidity Provider and the Policy Provider and (ii) promptly following its receipt of a direction from the Controlling Party hereunder, send a copy of such direction to each Rating Agency; provided, however, that (x) any failure by the Subordination Agent to furnish a copy of any such amendment, consent, modification, supplement, waiver or direction to any Rating Agency shall not affect the validity or effect of such amendment, consent, modification, supplement, waiver or direction, (y) the provision of a copy of such amendment, consent, modification, supplement, waiver or direction to the Rating Agencies shall be for informational purposes only and shall not affect the rights and remedies available to the Policy Provider, any Primary Liquidity Provider or Controlling Party hereunder or under any Operative Agreement and (z) the provision by the Subordination Agent of, or failure by the Subordination Agent to furnish, a copy of such amendment, consent, modification, supplement, waiver or direction to the Rating Agencies shall not affect any provision hereof requiring a Ratings Confirmation.

 

(b)                                 Each Rating Agency shall be entitled to the same access to the Subordination Agent and the Trustees as the Certificateholders of any Class with respect to information relevant to maintaining such Rating Agency’s ratings on the Certificates.

 

ARTICLE X

MISCELLANEOUS

 

Section 10.1.                         Termination of Intercreditor Agreement.  Following payment of Final Distributions with respect to each Class of Certificates and the payment in full of all Liquidity Obligations to the Primary Liquidity Providers and all Policy Provider Obligations to the Policy Provider and provided that there shall then be no other amounts due to the Certificateholders, the Trustees, the Liquidity Providers, the Policy Provider and the Subordination Agent hereunder or under the Trust Agreements, and that the commitment of the (i) Liquidity Providers under the Liquidity Facilities and (ii) Policy Provider under the Policy shall have expired or been terminated, this Agreement and the trusts created hereby shall terminate and this Agreement shall be of no further force or effect.  Except as aforesaid or otherwise provided, this Agreement and

 

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the trusts created hereby shall continue in full force and effect in accordance with the terms hereof.

 

Section 10.2.                         Intercreditor Agreement for Benefit of Trustees, Liquidity Providers, the Policy Provider and Subordination Agent.  Subject to the second sentence of Section 10.6 and the provisions of Sections 4.4 and 9.1, nothing in this Agreement, whether express or implied, shall be construed to give to any Person other than the Trustees, the Liquidity Providers, the Policy Provider and the Subordination Agent any legal or equitable right, remedy or claim under or in respect of this Agreement.

 

Section 10.3.                         Notices.  Unless otherwise expressly specified or permitted by the terms hereof, all notices, requests, demands, authorizations, directions, consents, waivers or documents provided or permitted by this Agreement to be made, given, furnished or filed shall be in writing, mailed by certified mail, postage prepaid, or by confirmed telecopy and:

 

(i)                                     if to the Subordination Agent, addressed to at its office at:

 

WILMINGTON TRUST COMPANY

Rodney Square North

1100 N. Market Street

Wilmington, DE  19890-0001

 

Attention:                                         Corporate Trust Administration

Telecopy:                                           (302) 636-4140

 

(ii)                                  if to any Trustee, addressed to it at its office at:

 

WILMINGTON TRUST COMPANY

Rodney Square North

1100 N. Market Street

Wilmington, DE  19890-0001

 

Attention:                                         Corporate Trust Administration

Telecopy:                                           (302) 636-4140

 

(iii)                               if to the initial Primary Liquidity Provider, addressed to it at its office at:

 

LANDESBANK BADEN-WÜRTTEMBERG
Am Hauptbahnhof 2
D-70173 Stuttgart
Germany
Attention:  Structured Finance
Telephone:  +49 711 124-9757
Telecopy:    +49 711 124-9747

 

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with a copy to:

 

LANDESBANK BADEN-WÜRTTEMBERG

280 Park Avenue, West Building, 31st Floor

New York, New York, 10017

Attention:                                         Claudia Rothe, Vice President

Vincent Chen/Bette Smolen, Assistant Vice President
Telephone:
                                    (212) 584-1700
Telecopy:                                           (212) 584-1729

 

(iv)                              if to the Above-Cap Liquidity Provider, addressed to it at its office at:

 

CITIBANK, N.A.

250 West Street, 10th Floor

New York, New York 10013

Attention:  Director Derivatives Operations

Telecopy:                                           212-723-2956

(For all purposes)

 

with a copy to:

 

Citibank, N.A.

Legal Department

77 Water Street

9th Floor

New York, New York 10004

Attention:                                         Department Head

Telecopy:  212-657-1452

 

(v)                                 if to the initial Policy Provider, addressed to it at its office at:

 

MBIA Insurance Corporation

113 King Street

Armonk, New York  10504

Attention:                                         Insured Portfolio Management, Structural Finance

Telephone:                                    914-273-4949

Telecopy:                                           914-765-3163

 

Whenever any notice in writing is required to be given by any Trustee, any Liquidity Provider, Policy Provider or the Subordination Agent to any of the other of them, such notice shall be deemed given and such requirement satisfied when such notice is received unless received outside of business hours, in which case on the open of business on the next Business Day.  A copy of any notice given by the Trustee, any Liquidity Provider or the Subordination Agent shall be given to the Policy Provider; provided that the failure to do so shall not impair the validity of any such notice or the Policy Provider’s obligations hereunder and under the Policy.  Any party hereto may change the address to which notices to such party will be sent by giving notice of such change to the other parties to this Agreement.

 

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Section 10.4.                         Severability.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

Section 10.5.                         No Oral Modifications or Continuing Waivers.  No terms or provisions of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party or other Person against whom enforcement of the change, waiver, discharge or termination is sought and any other party or other Person whose consent is required pursuant to this Agreement and any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given.

 

Section 10.6.                         Successors and Assigns.  All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, each of the parties hereto and the successors and assigns of each, all as herein provided.  In addition, the JetBlue Provisions shall inure to the benefit of JetBlue and its successors and assigns, and (without limitation of the foregoing) JetBlue is hereby constituted, and agreed to be, an express third party beneficiary of the JetBlue Provisions.  Upon the occurrence of the Transfers contemplated by the Assignment and Assumption Agreements, the Trustee of each Class shall (without any further act) be deemed to have transferred all of its rights, title and interest in and to this Agreement to the trustee of the Successor Trust of the same Class and, thereafter, the trustee of each Successor Trust shall be deemed to be the “Trustee” of such Successor Trust with the rights and obligations of a “Trustee” hereunder and under the other Operative Agreements and each reference to a Trust of any Class herein shall be deemed a reference to the Successor Trust of such Class.

 

Section 10.7.                         Headings.  The headings of the various Articles and Sections herein and in the table of contents hereto are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.

 

Section 10.8.                         Counterpart Form.  This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same agreement.

 

Section 10.9.                         Subordination.  (a) As between the Liquidity Providers and the Policy Provider, on the one hand, and the Trustees and the Certificateholders, on the other hand, and as among the Trustees, this Agreement shall be a subordination agreement for purposes of Section 510 of the United States Bankruptcy Code, as amended from time to time.

 

(b)                                 Notwithstanding the provisions of this Agreement, if prior to the payment in full to the Primary Liquidity Providers of all Liquidity Obligations then due and payable and Policy Provider of all Policy Provider Amounts, any party hereto shall have received any payment or distribution in respect of Equipment Notes or any other amount under the Indentures or other Operative Agreements which, had the subordination provisions of this Agreement been properly applied to such payment, distribution or other amount, would not have been distributed to such Person, then such payment, distribution or other amount shall be received and held in

 

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trust by such Person and paid over or delivered to the Subordination Agent for application as provided herein.

 

(c)                                  If any Trustee, any Liquidity Provider, the Policy Provider or the Subordination Agent receives any payment in respect of any obligations owing hereunder (or, in the case of the Primary Liquidity Provider or the Policy Provider, in respect of the Liquidity Obligations or the Policy Provider Amounts, as the case may be), which is subsequently invalidated, declared preferential, set aside and/or required to be repaid to a trustee, receiver or other party, then, to the extent of such payment, such obligations (or, in the case of the Primary Liquidity Provider or the Policy Provider, such Liquidity Obligations or Policy Provider Amounts, as the case may be) intended to be satisfied shall be revived, reinstated and continue in full force and effect as if such payment had not been received.

 

(d)                                 The Trustees (on behalf of themselves and the holders of Certificates), the Liquidity Providers, the Policy Provider and the Subordination Agent confirm that the payment priorities specified in Sections 2.4 and 3.2 shall apply in all circumstances, notwithstanding the fact that the obligations owed to the Trustees and the holders of Certificates are secured by certain assets and the Liquidity Obligations and Policy Provider Amounts may not be so secured.  The Trustees expressly agree (on behalf of themselves and the holders of Certificates) not to assert priority over the holders of (or obligees in respect of) Liquidity Obligations or Policy Provider Amounts (except as specifically set forth in Sections 2.4 or 3.2) due to their status as secured creditors in any bankruptcy, insolvency or other legal proceeding.

 

(e)                                  Each of the Trustees (on behalf of themselves and the holders of Certificates), the Primary Liquidity Providers, the Policy Provider and the Subordination Agent may take any of the following actions without impairing its rights under this Agreement:

 

(i)                                     obtain a Lien on any property to secure any amounts owing to it hereunder, including, in the case of the Primary Liquidity Providers and the Policy Provider, the Liquidity Obligations or the Policy Provider Amount, as the case may be,

 

(ii)                                  obtain the primary or secondary obligation of any other obligor with respect to any amounts owing to it hereunder, including, in the case of the Primary Liquidity Providers and the Policy Provider, any of the Liquidity Obligations or the Policy Provider Amount, as the case may be,

 

(iii)                               renew, extend, increase, alter or exchange any amounts owing to it hereunder, including, in the case of the Primary Liquidity Providers and the Policy Provider, any of the Liquidity Obligations or the Policy Provider Amount, as the case may be, or release or compromise any obligation of any obligor with respect thereto,

 

(iv)                              refrain from exercising any right or remedy, or delay in exercising such right or remedy, which it may have, or

 

(v)                                 take any other action which might discharge a subordinated party or a surety under applicable law;

 

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provided, however, that the taking of any such actions by any of the Trustees, the Primary Liquidity Providers, the Policy Provider or the Subordination Agent shall not prejudice the rights or adversely affect the obligations of any other party under this Agreement.

 

Section 10.10.                  Governing Law.  THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.

 

Section 10.11.                  Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.  (a) Each of the parties hereto hereby irrevocably and unconditionally:

 

(i)                                     submits for itself and its property in any legal action or proceeding relating, to this Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in respect hereof or thereof, to the nonexclusive general jurisdiction of the courts of the State of New York sitting in the city of New York, the courts of the United States of America for the Southern District of New York, and the appellate courts from any thereof;

 

(ii)                                  consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(iii)                               agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to each party hereto at its address set forth in Section 10.3 hereof, or at such other address of which the other parties shall have been notified pursuant thereto; and

 

(iv)                              agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

 

(b)                                 EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law and statutory claims.  Each of the parties warrants and represents that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with such legal counsel.  THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

 

76



 

(c)                                  Each Primary Liquidity Provider hereby waives any immunity it may have from the jurisdiction of the courts of the United States of America or any State and waives any immunity any of its properties located in the United States of America may have from attachment or execution upon a judgment entered by any such court under the United States Foreign Sovereign Immunities Act of 1976 or any similar successor legislation.

 

*   *   *

 

77



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, as of the day and year first above written, and acknowledge that this Agreement has been made and delivered in the City of New York, and this Agreement has become effective only upon such execution and delivery.

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
for each of the Trusts

 

 

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

Name:  W. Chris Sponenberg

 

 

Title:  Vice President

 

 

 

 

 

 

 

LANDESBANK BADEN-WÜRTTEMBERG,
as Class G-1 Primary Liquidity Provider, Class G-
2 Primary Liquidity Provider and Class C Primary
Liquidity Provider

 

 

 

 

 

 

By:

/s/ Dr. Hans-Matthias Neugebauer

 

 

Name:  Dr. Hans-Matthias Neugebauer

 

 

Title:  SVP

 

 

 

 

 

 

 

By:

/s/ Jeannine Eder

 

 

Name:  Jeannine Eder

 

 

Title:  VP

 

 

 

 

 

 

 

CITIBANK, N.A., as Class G-1 Above-Cap
Liquidity Provider, Class G-2 Above-Cap
Liquidity Provider and Class C Above-Cap
Liquidity Provider

 

 

 

 

 

 

By:

/s/ William S. Kloehm

 

 

Name:  William S. Kloehm

 

 

Title:  Managing Director

 

78



 

 

MBIA INSURANCE CORPORATION,
as Policy Provider

 

 

 

 

 

 

By:

/s/ Adam M. Carta

 

 

Name:  Adam M. Carta

 

 

Title:  Assistant Secretary

 

 

 

 

 

 

 

WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly
set forth herein but solely as Subordination Agent
and Trustee

 

 

 

 

 

 

By:

/s/ W. Chris Sponenberg

 

 

Name:  W. Chris Sponenberg

 

 

Title:  Vice President

 

79



 

SCHEDULE 2.2(b)

 

Upon the funding of any Above-Cap Account or Above-Cap Reserve Account or the maturity or redemption of any investment of funds in any such account (such funds, the “Funds”), the relevant Above-Cap Liquidity Provider shall send a notice to the Subordination Agent containing a list of Eligible Investments (the “Specified Investments”) which shall contain at least 10 investments in open market commercial paper of corporations incorporated under the laws of the United States of America or any state thereof.

 

Following receipt of such notice, the Subordination Agent shall use its best efforts to invest or reinvest the Funds in any Specified Investment.  If no Specified Investment is then available, the Subordination Agent shall invest or reinvest the Funds in any other Eligible Investment selected by the Subordination Agent.

 

Following such investment or reinvestment of the Funds by the Subordination Agent in any Specified Investment or other Eligible Investment, the Subordination Agent shall deliver a written statement to the relevant Above-Cap Liquidity Provider setting forth for each such Specified Investment or Eligible Investment the CUSIP number or other similar number for such obligation (or, if such obligation does not have such a number, (i) the name of the issuer, (ii) its maturity date, (iii) its yield or rate of return, and (iv) its rating, if rated by any nationally recognized rating agency).

 

1



 

EXHIBIT A

 

JetBlue Airways Corporation

 

Pass Through Certificates, Series 2004-2

As of [ ] Unless Otherwise Noted; All Amounts in $

 

Aircraft Summary

 

 

 

 

 

 

 

 

 

 

 

Aircraft Information
Services Inc.

 

AvSolutions

 

Morten Beyer
& Agnew

 

Registration
Number

 

Section 1110
Status*

 

Operating Status**

 

Maintenance
Status***

 

Location of Engines

 

(dd-mmm-yy)

 

(dd-mmm-yy)

 

(dd-mmm-yy)

 

N603JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N605JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N606JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N607JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N608JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N612JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N613JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N615JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N618JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N621JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N623JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N624JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N625JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N627JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

N629JB

 

 

 

 

 

[mmm-yy]

 

[City, Country]

 

 

 

 

 

 

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 


*Section 1110 Status Key

**Aircraft is (1) in service, (2) in storage or (3) scrapped

(A) Subject to the 60-day period of Section 1110 of the Bankruptcy Code

(B) Subject to an election by JetBlue under Section 1110(a) of the Bankruptcy Code

(C) Covered by an agreement contemplated by Section 1110(b) of the Bankruptcy Code

(D) Not subject to either (A), (B), (C)

*** Next scheduled heavy check

 

1


EX-4.25 27 a04-11378_4ex4d25.htm EX-4.25

Exhibit 4.25

 

EXECUTION COPY

 

 

 

NOTE PURCHASE AGREEMENT

 

dated as of November 15, 2004

 

among

 

JETBLUE AIRWAYS CORPORATION,

 

WILMINGTON TRUST COMPANY,

as Pass Through Trustee under each of the

Pass Through Trust Agreements

 

WILMINGTON TRUST COMPANY,

as Subordination Agent

 

WILMINGTON TRUST COMPANY,

as Escrow Agent

 

and

 

WILMINGTON TRUST COMPANY,

as Paying Agent

 

 



 

INDEX TO NOTE PURCHASE AGREEMENT

 

Section 1.

Financing of Aircraft

 

 

 

 

Section 2.

Conditions Precedent

 

 

 

 

Section 3.

Representations and Warranties

 

 

 

 

Section 4.

Covenants

 

 

 

 

Section 5.

Notices

 

 

 

 

Section 6.

Expenses

 

 

 

 

Section 7.

Further Assurances

 

 

 

 

Section 8.

Miscellaneous

 

 

 

 

Section 9.

Governing Law

 

 

Schedules

 

Schedule I

Aircraft and Scheduled Delivery Months

Schedule II

Pass Through Trust Agreements

Schedule III

Deposit Agreements

Schedule IV

Escrow and Paying Agent Agreements

Schedule V

Aggregate Amortization Schedule

 

 

Annex

 

 

Annex A

Definitions

 

 

Exhibits

 

 

Exhibit A

Form of Delivery Notice

Exhibit B–1

Form of Participation Agreement

Exhibit B–2

Form of Indenture

 

i



 

NOTE PURCHASE AGREEMENT

 

THIS NOTE PURCHASE AGREEMENT, dated as of November 15, 2004, among (i) JETBLUE AIRWAYS CORPORATION, a Delaware corporation (the “Company”), (ii) WILMINGTON TRUST COMPANY (“WTC”) a Delaware banking corporation, not in its individual capacity except as otherwise expressly provided herein, but solely as trustee (in such capacity together with its successors in such capacity, the “Pass Through Trustee”) under each of the three separate Pass Through Trust Agreements (as defined below); (iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as subordination agent and trustee (in such capacity together with its successors in such capacity, the “Subordination Agent”) under the Intercreditor Agreement (as defined below), (iv) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Escrow Agent (in such capacity together with its successors in such capacity, the “Escrow Agent”), under each of the Escrow and Paying Agent Agreements (as defined below) and (v) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in such capacity together with its successors in such capacity, the “Paying Agent”) under each of the Escrow and Paying Agent Agreements.

 

W I T N E S S E T H:

 

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in Annex A hereto;

 

WHEREAS, the Company has obtained commitments from the Manufacturer pursuant to the Aircraft Purchase Agreement for the delivery of the fifteen (15) aircraft listed on Schedule I hereto (together with any aircraft substituted therefor in accordance with the Aircraft Purchase Agreement prior to the delivery thereof, the “Aircraft”);

 

WHEREAS, pursuant to each of the Pass Through Trust Agreements set forth in Schedule II hereto, and concurrently with the execution and delivery of this Agreement, separate grantor trusts (collectively, the “Pass Through Trusts” and, individually, a “Pass Through Trust”) have been created to facilitate certain of the transactions contemplated hereby, including, without limitation, the issuance and sale of pass through certificates pursuant thereto (collectively, the “Certificates”) to provide for a portion of the financing of the Aircraft;

 

WHEREAS, the Company has entered into the Underwriting Agreement dated November 9, 2004 (the “Purchase Agreement”) with the several Underwriters (the “Underwriters”) named therein, which provides that the Company will cause each Pass Through Trustee to issue and sell the Certificates to the Underwriters;

 

WHEREAS, concurrently with the execution and delivery of this Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit Agreements set forth in Schedule III hereto (the “Initial Deposit Agreements”) whereby the applicable Escrow Agent agreed to direct the Underwriters to make certain deposits referred to therein on the Issuance Date (the “Initial Deposits”) and to permit the applicable Pass Through Trustee to make additional deposits from time to time thereafter (the Initial Deposits together with such additional deposits are collectively referred to as the “Deposits”) and (ii) the Pass Through Trustees, the Underwriters, the Paying Agents and the Escrow Agents entered into the Escrow and Paying

 



 

Agent Agreements set forth in Schedule IV hereto (the “Escrow and Paying Agent Agreements”) whereby, among other things, (a) the Underwriters agreed to deliver an amount equal to the amount of the Initial Deposits to the Depositary on behalf of the applicable Escrow Agent and (b) the applicable Escrow Agent, upon the Depositary receiving such amount, has agreed to deliver escrow receipts to be affixed to each Certificate;

 

WHEREAS, in connection with the financing or refinancing of an Aircraft, the Company will give to the Pass Through Trustee a Funding Notice (as defined below) specifying its election;

 

WHEREAS, upon receipt of a Funding Notice with respect to an Aircraft, subject to the terms and conditions of this Agreement, the applicable Pass Through Trustees will enter into the applicable Financing Agreements relating to such Aircraft;

 

WHEREAS, upon the financing of each Aircraft, each Pass Through Trustee will fund its purchase of Equipment Notes with the proceeds of the sale of the Certificates or one or more Deposits withdrawn by the applicable Escrow Agent under the related Deposit Agreement bearing the same interest rate as the Certificates issued by such Pass Through Trust;

 

WHEREAS, concurrently with the execution and delivery of this Agreement, (i) Landesbank Baden-Württemberg, a bank established in Germany as a public law institution with legal capacity, (the “Primary Liquidity Provider”), has entered into three revolving credit agreements (each, a “Primary Liquidity Facility”), one each for the benefit of the Certificateholders of the Class G-1 Trust, Class G-2 Trust and the Class C Trust, with the Subordination Agent, as agent for the Pass Through Trustee on behalf of each such Pass Through Trust, (ii) Citibank, N.A. (the “Above-Cap Liquidity Provider”) has entered into an ISDA Master Agreement, together with the related Schedule and Confirmation,  with the Subordination Agent for the benefit of the Certificateholders of each of the Class G-1 Trust, the Class G-2 Trust and the Class C Trust (each an “Above-Cap Liquidity Agreement”) and (iii) the Pass Through Trustee, the Primary Liquidity Provider, the Above-Cap Liquidity Provider, the Policy Provider (as defined below) and the Subordination Agent have entered into the Intercreditor Agreement, dated as of the date hereof (the “Intercreditor Agreement”); and

 

WHEREAS, concurrently with the execution and delivery of this Agreement MBIA Insurance Corporation (the “Policy Provider”) has entered into the Insurance and Indemnity Agreement (the “Policy Provider Agreement”), with the Company and the Subordination Agent, as agent and trustee for the Pass Through Trustee of the Class G-1 Trust and Class G-2 Trust on behalf of the Class G-1 Trust and Class G-2 Trust, and the Policy Provider has issued the certificate guaranty insurance policies (collectively, the “Policies”) provided for therein for the benefit of the Class G-1 Certificateholders and Class G-2 Certificateholders.

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1.                                          Financing of Aircraft.  (a)  The Company confirms that it has entered into the Aircraft Purchase Agreement with the Manufacturer pursuant to which the Company has

 

2



 

agreed to purchase, and the Manufacturer has agreed to deliver, the Aircraft in the months specified in Schedule I hereto, all on and subject to terms and conditions specified in the Aircraft Purchase Agreement.  The Company agrees to finance the Aircraft in the manner provided herein, all on and subject to the terms and conditions hereof and of the relevant Financing Agreements.

 

(b)                                 In furtherance of the foregoing, the Company agrees to give the parties hereto, the Depositary, the Policy Provider and each of the Rating Agencies not less than two Business Days’ prior written notice in the form of the notice set out in Exhibit A hereto (a “Funding Notice”) of the scheduled financing date (the “Scheduled Financing Date”) (or, in the case of a substitute Funding Notice under Section 1(e) hereof, one Business Day’s prior notice) in respect of each Aircraft under the Aircraft Purchase Agreement, which notice shall:

 

(i)                                     specify the Scheduled Financing Date of such Aircraft (which shall be a Business Day before the Cut–off Date and no later than 90 days after the Delivery Date of such Aircraft and, except as provided in Section 1(e) hereof, the date (the “Funding Date”) on which the financing therefor in the manner provided herein shall be consummated);

 

(ii)                                  instruct the applicable Pass Through Trustee to execute and deliver to the relevant Escrow Agent a withdrawal certificate in the form of Exhibit B to the Escrow Agent so as to provide a Notice of Purchase Withdrawal to the Depositary with respect to the Equipment Notes to be issued in connection with the financing of such Aircraft;

 

(iii)                               instruct the applicable Pass Through Trustee to enter into the Participation Agreement included in the Financing Agreements with respect to such Aircraft at such a time on or before the Funding Date specified in such Funding Notice and to perform its obligations thereunder; and

 

(iv)                              specify the aggregate principal amount of each series of Equipment Notes to be issued, and purchased by the Pass Through Trustees, in connection with the financing of such Aircraft scheduled to be delivered on such Funding Date.

 

(c)                                  Upon receipt of a Funding Notice, the Pass Through Trustees shall, and shall cause the Subordination Agent to, enter into and perform their obligations under the Participation Agreement and other instructions specified in such Funding Notice, provided that such Participation Agreement and the other Financing Agreements to be entered into pursuant to such Participation Agreement shall be in the forms thereof annexed hereto.  With respect to each Aircraft, the Company shall direct WTC (or such other person that meets the eligibility requirements to act as mortgagee under the Indenture) to execute as Loan Trustee the Financing Agreements relating to such Aircraft to which such Loan Trustee is intended to be a party, and the Company shall concurrently therewith execute such Financing Agreements to which the Company is intended to be a party and perform its respective obligations thereunder.  Upon the request of the Policy Provider or of either Rating Agency, the Company shall deliver or cause to be delivered to the Policy Provider or such Rating Agency a true and complete copy of each Financing Agreement relating to the financing of each Aircraft together with a true and complete

 

3



 

set of the legal opinions delivered to the related Loan Trustee, Subordination Agent and Pass Through Trustee under the related Participation Agreement.

 

(d)                                 If after giving any Funding Notice, there shall be a delay in the financing of an Aircraft, or if on the Scheduled Financing Date of an Aircraft the financing thereof in the manner contemplated hereby shall not be consummated for whatever reason, the Company shall give the parties hereto and the Policy Provider prompt notice thereof.  Concurrently with the giving of such notice of postponement or subsequently, the Company shall give the parties hereto and the Policy Provider a substitute Funding Notice specifying the date to which such delivery and related financing shall have been re–scheduled (which shall be a Business Day before the Cut–off Date on which the Escrow Agents shall be entitled to withdraw one or more Deposits under each of the applicable Deposit Agreements to enable each applicable Pass Through Trustee to fund its purchase of the related Equipment Notes).  Upon receipt of any such notice of postponement, each applicable Pass Through Trustee shall comply with its obligations under Section 2.01 of each of the Pass Through Trust Agreements and thereafter the financing of the relevant Aircraft shall take place on the re–scheduled financing date therefor (all on and subject to the terms and conditions of the relevant Financing Agreements) unless further postponed as provided herein.

 

(e)                                  If the scheduled Delivery Date for any Aircraft is delayed for any reason (including the casualty loss thereof) more than 30 days beyond the last day of the month set forth opposite such Aircraft under the heading “Scheduled Delivery Months” in Schedule I hereto, the Company may identify for delivery a substitute aircraft therefor meeting the following conditions (a “Substitute Aircraft”):  (i) a Substitute Aircraft must be an Airbus A320–200 aircraft equipped with International Aero Engines model V2527-A5 engines, in each case manufactured after the date of this Agreement and (ii) the Company shall be obligated to obtain prior written consent of the Policy Provider and to obtain Rating Agency Confirmation in respect of the replacement of any Aircraft by Substitute Aircraft.  Upon the satisfaction of the conditions set forth above with respect to a Substitute Aircraft, the Aircraft to be replaced shall cease to be subject to this Agreement and all rights and obligations of the parties hereto concerning such Aircraft shall cease, and such Substitute Aircraft shall become and thereafter be subject to the terms and conditions of this Agreement to the same extent as such Aircraft.

 

(f)                                    The Company shall have no liability for the failure of the Pass Through Trustees to purchase Equipment Notes with respect to any Aircraft or Substitute Aircraft, other than the Company’s obligation, if any, to pay the Deposit Break Amount pursuant to Section 4(a)(i) of this Agreement.

 

(g)                                 Anything herein to the contrary notwithstanding, the Company shall not have the right, and shall not be entitled, at any time to request the issuance of Equipment Notes of any series to any Pass Through Trustee in an aggregate principal amount in excess of the amount of the Deposits then available for withdrawal by the Escrow Agent under and in accordance with the provisions of the related Deposit Agreement.

 

Section 2.                                          Conditions Precedent.  The obligation of the Pass Through Trustees to enter into, and to cause the Subordination Agent to enter into, any Participation Agreement as

 

4



 

directed pursuant to a Funding Notice and to perform its obligations thereunder is subject to satisfaction of the following conditions:

 

(a)                                  no Triggering Event shall have occurred; and

 

(b)                                 the Company shall have delivered a certificate to each such Pass Through Trustee, the Policy Provider and each Primary Liquidity Provider stating that the conditions precedent to the obligation of the Pass Through Trustees and the Subordination Agent under such Participation Agreement have been satisfied in all material respects.

 

Anything herein to the contrary notwithstanding, the obligation of each Pass Through Trustee to purchase Equipment Notes shall terminate on the Cut–off Date.

 

Section 3.                                          Representations and Warranties.  (a)  The Company represents and warrants that:

 

(i)                                     the Company is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is a “citizen of the United States” as defined in Section 40102 of the Act, and has the full corporate power, authority and legal right under the laws of the State of Delaware to execute and deliver this Agreement and each Financing Agreement to which it will be a party and to carry out the obligations of the Company under this Agreement and each Financing Agreement to which it will be a party;

 

(ii)                                  the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations under this Agreement have been duly authorized by the Company and will not violate its Certificate of Incorporation or by–laws or (other than any violation that would not result in a Material Adverse Change to the Company) the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

 

(iii)                               assuming the due authorization, execution and delivery hereof by the other parties hereto this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

(b)                                 WTC represents and warrants that:

 

(i)                                     WTC is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is a “citizen of the United States” as defined in Section 40102 of the Act, and has the full corporate power, authority and legal right under the laws of the State of Delaware and the United States pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement and each Financing Agreement to which it will be a party and to carry out the obligations of WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the case may be, under this Agreement and each Financing Agreement to which it will be a party;

 

5



 

(ii)                                  the execution and delivery by WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the case may be, of this Agreement and the performance by WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the case may be, of its obligations under this Agreement have been duly authorized by WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the case may be, and will not violate its articles of association or by–laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

 

(iii)                               this Agreement constitutes the legal, valid and binding obligations of WTC, in its capacity as Subordination Agent, Pass Through Trustee or Paying Agent, as the case may be, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

(c)                                  The Pass Through Trustee hereby confirms to each of the other parties hereto that its representations and warranties set forth in Section 7.15 of each Pass Through Trust Agreement are true and correct as of the date hereof.

 

(d)                                 The Subordination Agent represents and warrants that:

 

(i)                                     the Subordination Agent is duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has the full corporate power, authority and legal right under the laws of the State of Delaware and the United States pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement and each Financing Agreement to which it is or will be a party and to perform its obligations under this Agreement and each Financing Agreement to which it is or will be a party,

 

(ii)                                  this Agreement has been duly authorized, executed and delivered by the Subordination Agent; this Agreement constitutes the legal, valid and binding obligations of the Subordination Agent enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity;

 

(iii)                               none of the execution, delivery and performance by the Subordination Agent of this Agreement contravenes any law, rule or regulation of the State of Delaware or any United States governmental authority or agency regulating the Subordination Agent’s banking, trust or fiduciary powers or any judgment or order applicable to or binding on the Subordination Agent and do not contravene the Subordination Agent’s articles of association or by–laws or result in any breach of, or constitute a default under, any agreement or instrument to which the Subordination Agent is a party or by which it or any of its properties may be bound;

 

6



 

(iv)                              neither the execution and delivery by the Subordination Agent of this Agreement nor the consummation by the Subordination Agent of any of the transactions contemplated hereby requires the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any Delaware governmental authority or agency or any federal governmental authority or agency regulating the Subordination Agent’s banking, trust or fiduciary powers;

 

(v)                                 there are no Taxes payable by the Subordination Agent imposed by the State of Delaware or any political subdivision or taxing authority thereof in connection with the execution, delivery and performance by the Subordination Agent of this Agreement (other than franchise or other taxes based on or measured by any fees or compensation received by the Subordination Agent for services rendered in connection with the transactions contemplated by the Intercreditor Agreement or any of the Liquidity Facilities), and there are no Taxes payable by the Subordination Agent imposed by the State of Delaware or any political subdivision thereof in connection with the acquisition, possession or ownership by the Subordination Agent of any of the Equipment Notes (other than franchise or other taxes based on or measured by any fees or compensation received by the Subordination Agent for services rendered in connection with the transactions contemplated by the Intercreditor Agreement or any of the Liquidity Facilities); and

 

(vi)                              there are no pending or threatened actions or proceedings against the Subordination Agent before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Subordination Agent to perform its obligations under this Agreement.

 

(e)                                  The Escrow Agent represents and warrants that:

 

(i)                                     the Escrow Agent is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the full corporate power, authority and legal right under the laws of the State of Delaware pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement, each Deposit Agreement and each Escrow and Paying Agent Agreement (collectively, the “Escrow Agent Agreements”) and to carry out the obligations of the Escrow Agent under each of the Escrow Agent Agreements;

 

(ii)                                  the execution and delivery by the Escrow Agent of each of the Escrow Agent Agreements and the performance by the Escrow Agent of its obligations hereunder and thereunder have been duly authorized by the Escrow Agent and will not violate its articles of association or by–laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

 

(iii)                               each of the Escrow Agent Agreements constitutes the legal, valid and binding obligations of the Escrow Agent enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

7



 

(f)                                    The Paying Agent represents and warrants that:

 

(i)                                     the Paying Agent is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the full corporate power, authority and legal right under the laws of the State of Delaware and the United States pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement and the Escrow and Paying Agent Agreement (collectively, the “Paying Agent Agreements”) and to carry out the obligations of the Paying Agent under each of the Paying Agent Agreements;

 

(ii)                                  the execution and delivery by the Paying Agent of each of the Paying Agent Agreements and the performance by the Paying Agent of its obligations hereunder and thereunder have been duly authorized by the Paying Agent and will not violate its articles of association or by–laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

 

(iii)                               each of the Paying Agent Agreements constitutes the legal, valid and binding obligations of the Paying Agent enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

Section 4.                                          Covenants.  (a) The Company covenants with each of the other parties hereto that:

 

(i)                                     on the date that the Depositary is obligated to pay the amount of the Final Withdrawals to the Paying Agent pursuant to the Deposit Agreements relating to the Class G-1 Trust, Class G-2 Trust and the Class C Trust, the Company shall pay to the Pass Through Trustee of each such Trust no later than 12:30 p.m. (New York time) an amount equal to the Deposit Break Amount, if any, required to be paid in respect of each such Final Withdrawal amount;

 

(ii)                                  the Company shall not consolidate with or merge into any other person under circumstances in which the Company is not the surviving corporation, or convey, transfer or lease in one or more transactions all or substantially all of its assets to any other person, unless such person is organized, existing and in good standing under the Laws of the United States, any State of the United States or the District of Columbia and, upon consummation of such transaction, such person will be a U.S. Air Carrier (as defined in the Financing Agreements).  Upon any such consolidation or merger of the Company with or into, or the conveyance, transfer or lease by the Company of all or substantially all of its assets to, any Person in accordance with this Section 4(a)(ii), such Person will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Operative Agreements and Financing Agreements with the same effect as if such person had been named as the “Company” or “Owner” therein.  No such consolidation or merger, or conveyance, transfer or lease, shall have the effect of releasing the Company or such Person from any of the obligations, liabilities, covenants or undertakings of the Company under the Financing Agreements;

 

8



 

(iii)                               the Company shall at all times remain a U.S. Air Carrier (as defined in the Financing Agreements) and shall at all times be otherwise certificated and registered to the extent necessary to entitle the Loan Trustee to the rights afforded to secured parties of aircraft equipment under Section 1110;

 

(iv)                              the Company agrees to provide written notice to each of the parties hereto of the occurrence of the Cut–off Date no later than one Business Day after the date thereof; such notice to refer specifically to the Pass Through Trustee’s obligation to assign, transfer and deliver all of its right, title and interest to the Trust Property (as defined in each Pass Through Trust Agreement) to the trustee of the Related Trust (as defined in each Pass Through Trust Agreement) in accordance with Section 11.01 of each of the Pass Through Trust Agreements; and

 

(v)                                 On the Issuance Date, the Depositary’s long–term issuer credit rating shall be at least A from Standard & Poor’s and short-term unsecured debt rating shall be P–1 from Moody’s (the “Depository Threshold Rating”).  If the Depositary’s long–term issuer credit rating or short-term unsecured debt rating, as the case may be, shall at any time fall below A from Standard & Poor’s or P–1 from Moody’s (provided, that so long as HSH Nordbank is the Depositary, for Standard & Poor’s the “long-term issuer credit rating” shall refer to (x) on or prior to July 18, 2005, HSH Nordbank’s long-term issuer credit rating with the benefit of state guarantees and (y) after July 18, 2005, HSH Nordbank’s long-term issuer credit rating without the benefit of state guarantees unless Standard & Poor’s has notified the Subordination Agent that another rating would be applicable to HSH Nordbank’s obligations under the Deposit Agreements, in which case, such other applicable rating), as the case may be, the Company shall, within 45 days of such event occurring, cause the Depositary to be replaced with a depository bank (a “Replacement Depositary”) on the following terms and preconditions:

 

(A)                              the Replacement Depositary must be one that meets the Depositary Threshold Rating (unless the Company shall have obtained (i) written confirmation from each Rating Agency that such replacement will not cause a reduction of any rating then in effect for any Class of Certificates by such Rating Agency (without regard to any downgrading of any rating of the Depositary being replaced and without regard to the Policies) and (ii) the prior written consent of the Policy Provider) and the Company shall have obtained written confirmation from each Rating Agency that such replacement will not cause a reduction of any rating then in effect for any Class of Certificates by such Rating Agency (without regard to any downgrading of any rating of the Depositary being replaced and without regard to the Policies);

 

(B)                                the Company shall pay all fees, expenses and other amounts then owing to the replaced Depositary; and

 

(C)                                the Company shall cause the Escrow Agent and the Replacement Depositary to enter into a Replacement Deposit Agreement for each Class of Certificates and shall cause the Replacement Depositary to deliver to the Company, the Policy Provider and each Rating Agency legal opinions and other

 

9



 

closing documentation substantially similar in scope and substance as those that were delivered by the Depositary being replaced in connection with the execution and delivery of the Deposit Agreement being replaced.

 

Upon satisfaction of the foregoing conditions, the Company shall instruct each Pass Through Trustee, and each Pass Through Trustee agrees, to execute and deliver to the Escrow Agent a duly completed Withdrawal Certificate (as defined in the Escrow and Paying Agent Agreements) together with a Notice of Replacement Withdrawal (as defined in the Escrow and Paying Agent Agreements).

 

Each of the parties hereto agrees, at the Company’s request, to enter into any amendments to this Agreement, the Escrow and Paying Agent Agreements and any other Operative Agreements as may be necessary or desirable to give effect to the replacement of the Depositary with the Replacement Depositary and the replacement of the Deposit Agreements with the Replacement Deposit Agreements.

 

Upon the execution and delivery of the Replacement Deposit Agreements, the Replacement Depositary shall be deemed to be the Depositary with all of the rights and obligations of the Depositary hereunder and under the other Operative Agreements and the Replacement Deposit Agreements shall be deemed to be the Deposit Agreements hereunder and under the other Operative Agreements, except that the obligations of the replaced Depositary under the last two sentences of Section 2.4 of its Deposit Agreements shall remain in full force and effect notwithstanding the execution and delivery of the Replacement Deposit Agreements.

 

(b)                                 WTC, in its individual capacity, covenants with each of the other parties to this Agreement that it will, immediately upon obtaining knowledge of any facts that would cast doubt upon its continuing status as a “citizen of the United States” as defined in Section 40102 of the Act and promptly upon public disclosure of negotiations in respect of any transaction which would or might adversely affect such status, notify in writing all parties hereto of all relevant matters in connection therewith.  Upon WTC giving any such notice, WTC shall, subject to Section 9.02 of any Indenture then entered into, resign as Loan Trustee in respect of such Indenture.

 

(c)                                  The Subordination Agent covenants with each of the other parties hereto that it will not agree or consent to any amendment or modification to any Liquidity Facility, the Policy Provider Agreement or the JetBlue Provisions (as defined in the Intercreditor Agreement) of the Intercreditor Agreement without the Company’s consent, if such amendment or modification would materially adversely affect the interests of the Company.

 

(d)                                 The Escrow Agent covenants with each of the other parties hereto that it will not agree or consent to any amendment or modification to (i) any Deposit Agreement or Escrow and Paying Agent Agreement without the Company’s consent if such amendment or modification would adversely affect the interests of the Company or (ii) the Deposit Agreement for the Class G-1Trust, Class G-2 Trust or the Escrow and Paying Agent Agreement for the Class G-1 Trust or Class G-2 Trust without the Policy Provider’s consent, if such amendment or modification would adversely affect the interests of the Policy Provider.

 

10



 

Section 5.                                          Notices.  Unless otherwise expressly permitted by the terms hereof, all notices, requests, demands, authorizations, directions, consents, waivers and other communications required or permitted to be made, given, furnished or filed hereunder shall be in writing (it being understood that the specification of a writing in certain instances and not in others does not imply an intention that a writing is not required as to the latter), shall refer specifically to this Agreement, and shall be personally delivered, sent by facsimile or telecommunication transmission (which in either case provides written confirmation to the sender of its delivery), sent by registered mail or certified mail, return receipt requested, postage prepaid, or sent by overnight courier service, in each case to the respective address or facsimile number set forth for such party below the signature of such party on the signature page of this Agreement, or to such other address, facsimile or other number as each party hereto may hereafter specify by notice to the other parties hereto.  Notice shall be given to the Policy Provider at the address specified in the Intercreditor Agreement.  Each such notice, request, demand, authorization, direction, consent, waiver or other communication shall be effective when received or if made, given, furnished or filed by facsimile or telecommunication transmission, when received unless received outside of business hours, in which case on the next open of business on a Business day.

 

Section 6.                                          Expenses.  (a) The Company agrees to pay to the Subordination Agent when due for application in accordance with the Intercreditor Agreement an amount or amounts equal to the fees payable to the Primary Liquidity Provider under Section 2.03 of each Primary Liquidity Facility multiplied by a fraction the numerator of which shall be the then outstanding aggregate amount of the Deposits under the Deposit Agreements pertaining to the Class G-1 Trust and Class G-2 Trust and Class C Trust and the denominator of which shall be the sum of (x) the then outstanding aggregate principal amount of the Series G-1 Equipment Notes, Series G-2 Equipment Notes and Series C Equipment Notes issued under all of the Indentures and (y) the then outstanding aggregate amount of the Deposits under the Deposit Agreements pertaining to the Class G-1 Trust, Class G-2 Trust and the Class C Trust.

 

(b)                                 The Company agrees to pay to the Subordination Agent when due for application in accordance with the Intercreditor Agreement an amount or amounts equal to the fees payable to the Policy Provider under Section 3.02 of the Policy Provider Agreement multiplied by a fraction the numerator of which shall be the then outstanding aggregate amount of the Deposits under the Deposit Agreement pertaining to the Class G-1 Trust and Class G-2 Trust and the denominator of which shall be the sum of (x) the then outstanding aggregate principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes issued under all of the Indentures and (y) the then outstanding aggregate amount of the Deposits under the Deposit Agreement pertaining to the Class G-1 Trust and Class G-2 Trust.

 

(c)                                  So long as no Equipment Notes have been issued in respect of any Aircraft, the Company agrees to pay (i) to the Subordination Agent when due (A) the amount equal to interest on any Downgrade Advance (other than any Applied Downgrade Advance) payable under Section 3.07 of each Primary Liquidity Facility minus Investment Earnings while such Downgrade Advance shall be outstanding, (B) the amount equal to interest on any Non–Extension Advance (other than any Applied Non–Extension Advance) payable under Section 3.07 of each Primary Liquidity Facility minus Investment Earnings while such Non–Extension Advance shall be outstanding and (C) any other amounts owed to the Primary

 

11



 

Liquidity Provider by the Subordination Agent as borrower under each Primary Liquidity Facility (other than (x) amounts due as payment of advances thereunder or as interest on such advances, except to the extent payable pursuant to clause (A) or (B) and (y) fees payable under Section 6(a) above), (ii) all compensation and reimbursement of expenses, disbursements and advances payable by the Company under the Pass Through Trust Agreements, (iii) all compensation and reimbursement of expenses and disbursements payable to the Subordination Agent under the Intercreditor Agreement (as may be modified by any separate letter agreement) except with respect to any Unindemnified Taxes incurred by the Subordination Agent in connection with the transactions contemplated by the Intercreditor Agreement, (iv) all compensation and reimbursement of expenses and disbursements payable to the Policy Provider under the Policy Provider Agreement (except for fees payable under Section 6(b) above), and (v) in the event the Company requests an amendment to any Operative Agreement, all reasonable fees and expenses (including, without limitation, fees and disbursements of counsel) of the Escrow Agent, the Paying Agent or the Policy Provider in connection therewith.  For purposes of this Section 6(b), the terms “Applied Downgrade Advance”, “Applied Non–Extension Advance”, “Downgrade Advance”, “Investment Earnings” and “Non–Extension Advance” shall have the meanings specified in each Primary Liquidity Facility.

 

Section 7.                                          Further Assurances.  Each party hereto shall duly execute, acknowledge and deliver, or shall cause to be executed, acknowledged and delivered, all such further agreements, instruments, certificates or documents, and shall do and cause to be done such further acts and things, in any case, as any other party hereto shall reasonably request in connection with its administration of, or to carry out more effectually the purposes of, or to better assure and confirm unto it the rights and benefits to be provided under, this Agreement.

 

Section 8.                                          Miscellaneous.  (a) Provided that the transactions contemplated hereby have been consummated, and except as otherwise provided for herein, the representations, warranties and agreements herein of the Company, the Subordination Agent, the Escrow Agent, the Paying Agent and the Pass Through Trustee, and the Company’s, the Subordination Agent’s, the Escrow Agent’s, the Paying Agent’s and the Pass Through Trustee’s obligations under any and all thereof, shall survive the expiration or other termination of this Agreement and the other agreements referred to herein.

 

(b)                                 This Agreement may be executed in any number of counterparts (and each of the parties hereto shall not be required to execute the same counterpart).  Each counterpart of this Agreement, including a signature page executed by each of the parties hereto, shall be an original counterpart of this Agreement, but all of such counterparts together shall constitute one instrument.  Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the party against which the enforcement of the termination, amendment, supplement, waiver or modification is sought.  The index preceding this Agreement and the headings of the various Sections of this Agreement are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.  The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the Company and its successors and permitted assigns, the Pass Through Trustee and its successors as Pass Through Trustee (and any additional trustee appointed) under any of the Pass Through Trust Agreements, the Escrow Agent and its successors as Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent

 

12



 

and its successors as Paying Agent under the Escrow and Paying Agent Agreement, the Policy Provider and its successors as Policy Provider under the Intercreditor Agreement and the Subordination Agent and its successors as Subordination Agent under the Intercreditor Agreement.

 

(c)                                  This Agreement is not intended to, and shall not, provide any person not a party hereto (other than the Underwriters, the Policy Provider and each of the beneficiaries of Section 6 hereof) with any rights of any nature whatsoever against any of the parties hereto, and no person not a party hereto (other than the Underwriters, the Policy Provider and each of the beneficiaries of Section 6 hereof) shall have any right, power or privilege in respect of, or have any benefit or interest arising out of, this Agreement.  To the extent that this Agreement expressly confers upon, gives or grants any right, power, privilege, benefit, interest, remedy or claim to any of the beneficiaries of Section 6 hereof (including, but not limited to rights, powers, privileges, benefits, interests, remedies and claims under Section 6) each such party is hereby recognized as a third party beneficiary hereunder and may enforce any such right, power, privilege, benefit, interest, remedy or claim.

 

Section 9.                                          Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.

 

13



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

By:

 /s/ John Harvey

 

 

Title: VP Corporate Finance & Treasurer

 

 

 

Address:

118-29 Queens Blvd.

 

 

Forest Hills, NY 11375

 

 

Attention:

Vice President –
Corporate Finance

 

 

Facsimile:

718-709-3639

 

 

 

 

with a copy to:

 

 

 

 

118-29 Queens Blvd.

 

 

Forest Hills, NY 11375

 

 

Attention: General Counsel

 

 

Facsimile: 718-709-3630

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as
otherwise provided herein, but solely as Pass
Through Trustee

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

Title: Vice President

 

 

 

 

Address:

Rodney Square North

 

 

1100 North Market Street

 

 

Wilmington, Delaware 19890-0001

 

 

Attention:

Corporate Trust Administration

 

 

Facsimile:

(302) 636-4140

 

14



 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as
otherwise provided herein, but solely as
Subordination Agent

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

Title: Vice President

 

 

 

 

Address:

Rodney Square North

 

 

1100 North Market Street

 

 

Wilmington, Delaware 19890-0001

 

 

Attention:

Corporate Trust

 

 

Administration

 

 

Facsimile:

(302) 636-4140

 

 

WILMINGTON TRUST COMPANY,

 

as Escrow Agent

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

Title: Vice President

 

 

 

 

Address:

Rodney Square North

 

 

1100 North Market Street

 

 

Wilmington, Delaware 19890-0001

 

 

Attention:

Corporate Trust Administration

 

 

Facsimile:

(302) 636-4140

 

 

WILMINGTON TRUST COMPANY,

 

as Paying Agent

 

 

 

By:

 /s/ W. Chris Sponenberg

 

 

Name: W. Chris Sponenberg

 

Title: Vice President

 

 

 

 

Address:

Rodney Square North

 

 

1100 North Market Street

 

 

Wilmington, Delaware 19890-0001

 

 

Attention:

Corporate Trust Administration

 

 

Facsimile:

(302) 636-4140

 

15



 

SCHEDULE I TO
NOTE PURCHASE AGREEMENT

 

AIRCRAFT AND SCHEDULED DELIVERY MONTHS

 

Aircraft Type

 

Expected
Registration
Number

 

Expected
Manufacturer’s
Serial Number

 

Scheduled
Delivery Month

 

 

 

 

 

 

 

Airbus A320

 

N603JB

 

2352

 

January 2005

Airbus A320

 

N605JB

 

2368

 

February 2005

Airbus A320

 

N606JB

 

2384

 

February 2005

Airbus A320

 

N607JB

 

2386

 

March 2005

Airbus A320

 

N608JB

 

2415

 

April 2005

Airbus A320

 

N612JB

 

2430

 

May 2005

Airbus A320

 

N613JB

 

TBD

 

June 2005

Airbus A320

 

N615JB

 

TBD

 

June 2005

Airbus A320

 

N618JB

 

TBD

 

July 2005

Airbus A320

 

N621JB

 

TBD

 

July 2005

Airbus A320

 

N623JB

 

TBD

 

August 2005

Airbus A320

 

N624JB

 

TBD

 

August 2005

Airbus A320

 

N625JB

 

TBD

 

October 2005

Airbus A320

 

N627JB

 

TBD

 

November 2005

Airbus A320

 

N629JB

 

TBD

 

November 2005

 

1



 

SCHEDULE II TO
NOTE PURCHASE AGREEMENT

 

PASS THROUGH TRUST AGREEMENTS

 

Pass Through Trust Agreement dated as of the Issuance Date between the Company and the Pass Through Trustee in respect of JetBlue Airways Pass Through Trust, Series 2004–2G-1–O.

 

Pass Through Trust Agreement dated as of the Issuance Date between the Company and the Pass Through Trustee in respect of JetBlue Airways Pass Through Trust, Series 2004–2G-2–O.

 

Pass Through Trust Agreement dated as of the Issuance Date between the Company and the Pass Through Trustee in respect of JetBlue Airways Pass Through Trust, Series 2004–2C–O.

 

1



 

SCHEDULE III
TO NOTE PURCHASE AGREEMENT

 

DEPOSIT AGREEMENTS

 

Deposit Agreement (Class G-1) dated as of the Issuance Date between the Depositary and the Escrow Agent.

 

Deposit Agreement (Class G-2) dated as of the Issuance Date between the Depositary and the Escrow Agent.

 

Deposit Agreement (Class C) dated as of the Issuance Date between the Depositary and the Escrow Agent.

 

1



 

SCHEDULE IV TO
NOTE PURCHASE AGREEMENT

 

ESCROW AND PAYING AGENT AGREEMENTS

 

Escrow and Paying Agent Agreement (Class G-1) dated as of the Issuance Date among the Escrow Agent, the Underwriters, the Pass Through Trustee and the Paying Agent.

 

Escrow and Paying Agent Agreement (Class G-2) dated as of the Issuance Date among the Escrow Agent, the Underwriters, the Pass Through Trustee and the Paying Agent.

 

Escrow and Paying Agent Agreement (Class C) dated as of the Issuance Date among the Escrow Agent, the Underwriters, the Pass Through Trustee and the Paying Agent.

 

1



 

SCHEDULE V
TO NOTE PURCHASE AGREEMENT

 

AGGREGATE AMORTIZATION SCHEDULE

 

Date

 

2004-2G-1 Trust
Scheduled Principal
Payment

 

2004-2G-2 Trust
Scheduled Principal
Payment

 

2004-2C Trust
Scheduled Principal
Payment

 

 

 

 

 

 

 

 

 

 

 

 

Issuance Date

 

$

0.00

 

$

0.00

 

$

0.00

 

February 15, 2005

 

0.00

 

0.00

 

0.00

 

May 15, 2005

 

0.00

 

0.00

 

0.00

 

August 15, 2005

 

0.00

 

0.00

 

0.00

 

November 15, 2005

 

0.00

 

0.00

 

11,900,000.00

 

February 15, 2006

 

2,154,619.37

 

0.00

 

6,670,469.28

 

May 15, 2006

 

2,166,038.50

 

0.00

 

6,704,743.03

 

August 15, 2006

 

4,352,553.40

 

0.00

 

13,472,868.60

 

November 15, 2006

 

2,191,582.50

 

0.00

 

6,783,811.78

 

February 15, 2007

 

2,154,966.00

 

0.00

 

6,670,469.28

 

May 15, 2007

 

2,166,038.50

 

0.00

 

6,704,743.03

 

August 15, 2007

 

4,352,553.40

 

0.00

 

13,472,868.60

 

November 15, 2007

 

2,191,582.50

 

0.00

 

6,783,811.78

 

February 15, 2008

 

2,154,966.00

 

0.00

 

6,670,469.28

 

May 15, 2008

 

2,166,038.50

 

0.00

 

6,704,743.03

 

August 15, 2008

 

4,352,553.40

 

0.00

 

13,472,868.60

 

November 15, 2008

 

5,391,348.73

 

0.00

 

$

30,054,133.71

 

February 15, 2009

 

2,134,044.00

 

0.00

 

 

 

May 15, 2009

 

2,145,009.00

 

0.00

 

 

 

August 15, 2009

 

4,310,295.60

 

0.00

 

 

 

November 15, 2009

 

8,358,863.97

 

0.00

 

 

 

February 15, 2010

 

2,092,200.00

 

0.00

 

 

 

May 15, 2010

 

2,102,950.00

 

0.00

 

 

 

August 15, 2010

 

4,225,780.00

 

0.00

 

 

 

November 15, 2010

 

8,105,335.37

 

0.00

 

 

 

February 15, 2011

 

2,050,356.00

 

0.00

 

 

 

May 15, 2011

 

2,060,891.00

 

0.00

 

 

 

August 15, 2011

 

4,141,264.40

 

0.00

 

 

 

November 15, 2011

 

7,851,806.77

 

0.00

 

 

 

February 15, 2012

 

2,008,512.00

 

0.00

 

 

 

May 15, 2012

 

2,018,832.00

 

0.00

 

 

 

August 15, 2012

 

4,056,748.80

 

0.00

 

 

 

November 15, 2012

 

7,598,278.17

 

0.00

 

 

 

February 15, 2013

 

1,966,668.00

 

0.00

 

 

 

May 15, 2013

 

1,976,773.00

 

0.00

 

 

 

August 15, 2013

 

3,972,233.20

 

0.00

 

 

 

November 15, 2013

 

12,689,414.03

 

0.00

 

 

 

 

1



 

Date

 

2004-2G-1 Trust
Scheduled Principal
Payment

 

2004-2G-2 Trust
Scheduled Principal
Payment

 

2004-2C Trust
Scheduled Principal
Payment

 

 

 

 

 

 

 

 

 

February 15, 2014

 

1,882,980.00

 

0.00

 

 

 

May 15, 2014

 

1,892,655.00

 

0.00

 

 

 

August 15, 2014

 

3,803,202.00

 

0.00

 

 

 

November 15, 2014

 

12,182,356.83

 

0.00

 

 

 

February 15, 2015

 

1,799,292.00

 

0.00

 

 

 

May 15, 2015

 

1,808,537.00

 

0.00

 

 

 

August 15, 2015

 

3,634,170.80

 

0.00

 

 

 

November 15, 2015

 

11,675,299.63

 

0.00

 

 

 

February 15, 2016

 

1,715,604.00

 

0.00

 

 

 

May 15, 2016

 

1,724,419.00

 

0.00

 

 

 

August 15, 2016

 

12,973,387.63

 

0.00

 

 

 

November 15, 2016

 

$

0.00

 

$

185,418,000.00

 

 

 

 

2



 

ANNEX A TO

NOTE PURCHASE AGREEMENT

 

DEFINITIONS

 

Above-Cap Liquidity Agreements” has the meaning set forth in the recitals to the Note Purchase Agreement.

 

Above-Cap Liquidity Provider” has the meaning set forth in the recitals to the Note Purchase Agreement.

 

Act” means 49 U.S.C. §§ 40101–46507.

 

Affiliate” means, with respect to any person, any other person directly or indirectly controlling, controlled by or under common control with such person.  For purposes of this definition, “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or by contract or otherwise and “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

Aircraft” has the meaning set forth in the second recital to the Note Purchase Agreement.

 

Aircraft Purchase Agreement” means the AVSA A320 Purchase Agreement, dated as of April 20, 1999 between the Company and AVSA S.A.R.L. (including all exhibits thereto, together with all letter agreements entered into that by their terms constitute part of any such Purchase Agreement).

 

Assumed Amortization Schedule” means Schedule V to the Note Purchase Agreement.

 

Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C.  §§ 101 et seq.

 

Business Day” means any day, other than a Saturday, Sunday or other day on which commercial banks are authorized or required by law to close in New York, New York or Wilmington, Delaware.

 

Certificate” has the meaning set forth in the third recital to the Note Purchase Agreement.

 

Certificateholder” means the Person in whose name a Certificate is registered in the Register.

 

Class” means the class of Certificates issued by each Pass Through Trust.

 

Class C Certificates” has the meaning specified in the Intercreditor Agreement.

 

1



 

Class C Trust” has the meaning specified in the Intercreditor Agreement.

 

Class G-1 Certificates” has the meaning specified in the Intercreditor Agreement.

 

Class G-1 Trust” has the meaning specified in the Intercreditor Agreement.

 

Class G-2 Certificates” has the meaning specified in the Intercreditor Agreement.

 

Class G-2 Trust” has the meaning specified in the Intercreditor Agreement.

 

Company” means JetBlue Airways Corporation, a Delaware corporation.

 

Corporate Trust Office” with respect to any Pass Through Trustee or any Loan Trustee, means the office of such trustee in the city at which at any particular time its corporate trust business shall be principally administered.

 

Cut–off Date” means the earlier of (a) the day after the Delivery Period Termination Date and (b) the date on which a Triggering Event occurs.

 

Delivery Date” means the Business Day on which an Aircraft is delivered to and accepted by the Company.

 

Delivery Period Termination Date” means the earlier of (a) February 28, 2006, or, if the Equipment Notes relating to all of the Aircraft (or Substitute Aircraft in lieu thereof) have not been purchased by the Pass Through Trustees on or prior to such date due to any reason beyond the control of the Company and not occasioned by the Company’s fault or negligence, May 31, 2006 and (b) the date on which Equipment Notes issued with respect to all of the Aircraft (or Substitute Aircraft in lieu thereof) have been purchased by the Pass Through Trustees in accordance with the Note Purchase Agreement.

 

Deposit” has the meaning set forth in the fifth recital to the Note Purchase Agreement.

 

Deposit Agreement” shall mean the initial Deposit Agreements set forth on Schedule III hereto and, from and after the transfer of the Deposits to a Replacement Depositary, shall refer to the corresponding Replacement Deposit Agreements between the Escrow Agent and the Replacement Depositary.

 

Depositary” means HSH Nordbank AG, acting through its New York Branch, a New York State licensed branch office of Landesbank organized under the laws of Germany, and, from and after the transfer of the Deposits to a Replacement Depositary, shall mean such Replacement Depositary.

 

Deposit Break Amount” means, as of any date of distribution of remaining Deposits relating to the Class G-1 Trust, Class G-2 Trust or Class C Trust (the “Applicable Date”), an amount determined by the Class G-1 Trustee, Class G-2 Trustee or Class C Trustee, as applicable, on the date that is two LIBOR Business Days prior to the Applicable Date pursuant to the formula set forth below.

 

2



 

The Deposit Break Amount will be calculated as follows:

 

Deposit Break Amount = Z–Y

 

Where:

 

X =                             with respect to any applicable interest period, the sum of (i) the amount of such remaining Deposits as of the Applicable Date plus (ii) interest payable thereon during such entire interest period at then effective Three–Month LIBOR.

 

Y =                              X, discounted to present value from the last day of the then applicable interest period to the Applicable Date, using then effective Three–Month LIBOR as the discount rate.

 

Z =                              X, discounted to present value from the last day of the then applicable interest period to the Applicable Date, using a rate equal to the applicable London interbank offered rate for a period commencing on the Applicable Date and ending on the last day of the then applicable interest period, determined by the relevant Trustee as of two LIBOR Business Days prior to the Applicable Date as the discount rate.

 

No Deposit Break Amount will be payable (x) if the Deposit Break Amount, as calculated pursuant to the formula set forth above, is equal to or less than zero or (y) on or in respect of any Applicable Date that is a Regular Distribution Date.

 

Equipment Notes” means and includes any equipment notes issued under any Indenture in the form specified in Section 2.01 thereof (as such form may be varied pursuant to the terms of such Indenture) and any Equipment Note issued under any Indenture in exchange for or replacement of any other Equipment Note.

 

Escrow Agent” has the meaning set forth in the first paragraph of the Note Purchase Agreement.

 

Escrow and Paying Agent Agreement” has the meaning set forth in the fifth recital to the Note Purchase Agreement.

 

FAA” means the Federal Aviation Administration of the United States.

 

Final Withdrawal” with respect to each Escrow and Paying Agent Agreement, has the meaning set forth in Section 1.02 thereof.

 

Financing Agreements” means, collectively, the Participation Agreement, the Indenture and the Equipment Notes issued thereunder.

 

Funding Date” has the meaning set forth in Section 1(b) hereof.

 

Funding Notice” has the meaning set forth in Section 1(b) hereof.

 

3



 

Government Entity” means (a) any federal, state, provincial or similar government, and any body, board, department, commission, court, tribunal, authority, agency or other instrumentality of any such government or otherwise exercising any executive, legislative, judicial, administrative or regulatory functions of such government or (b) any other government entity having jurisdiction over any matter contemplated by the Operative Agreements or relating to the observance or performance of the obligations of any of the parties to the Operative Agreements.

 

Indenture” means a Trust Indenture and Mortgage substantially in the form of Exhibit B–2 to the Note Purchase Agreement.

 

Intercreditor Agreement” has the meaning set forth in the ninth recital to the Note Purchase Agreement.

 

Issuance Date” means the date of the original issuance of the Certificates.

 

Law” means (a) any constitution, treaty, statute, law, decree, regulation, order, rule or directive of any Government Entity, and (b) any judicial or administrative interpretation or application of, or decision under, any of the foregoing.

 

LIBOR Business Day” means any day on which dealings are carried on in the London interbank market.

 

Liquidity Facility” has the meaning set forth in the Intercreditor Agreement.

 

Liquidity Provider” means the Primary Liquidity Provider and the Above-Cap Liquidity Provider.

 

Loan Trustee” means the “Mortgagee” as defined in the Financing Agreements.

 

Manufacturer” means Airbus S.A.S., solely in its capacity as manufacturer or seller of Aircraft.

 

Material Adverse Change” means, with respect to any Person, any event, condition or circumstance that materially and adversely affects such Person’s business or consolidated financial condition or its ability to observe or perform its obligations, liabilities and agreements under the Operative Agreements.

 

Note Holder” means at any time each registered holder of one or more Equipment Notes.

 

Note Purchase Agreement” means the Note Purchase Agreement to which this Annex A is attached.

 

Notice of Purchase Withdrawal” with respect to each Deposit Agreement, has the meaning set forth in Section 2.3 thereof.

 

4



 

Operative Agreements” means, collectively, the Pass Through Trust Agreements, the Escrow and Paying Agent Agreements, the Deposit Agreements, the Liquidity Facilities, the Policy Provider Agreement, the Policy, the Intercreditor Agreement, the Equipment Notes, the Certificates and the Financing Agreements.

 

Participation Agreement” means a Participation Agreement substantially in the form of Exhibit B–1 to the Note Purchase Agreement.

 

Pass Through Trust” has the meaning set forth in the third recital to the Note Purchase Agreement.

 

Pass Through Trust Agreement” has the meaning set forth in the third recital to the Note Purchase Agreement.

 

Pass Through Trustee” has the meaning set forth in the first paragraph of the Note Purchase Agreement.

 

Paying Agent” has the meaning set forth in the first paragraph of the Note Purchase Agreement.

 

Person” means any individual, firm, partnership, joint venture, trust, trustee, Government Entity, organization, association, corporation, limited liability company, government agency, committee, department, authority and other body, corporate or incorporate, whether having distinct legal status or not, or any member of any of the same.

 

Policy” has the meaning set forth in the tenth recital to the Note Purchase Agreement.

 

Policy Provider” has the meaning set forth in the tenth recital to the Note Purchase Agreement.

 

Policy Provider Agreement” has the meaning set forth in the tenth recital to the Note Purchase Agreement.

 

Policy Provider Obligations” has the meaning specified in the Intercreditor Agreement.

 

Primary Liquidity Facility” has the meaning set forth in the recitals to the Note Purchase Agreement.

 

Primary Liquidity Provider” has the meaning set forth in the recitals to the Note Purchase Agreement.

 

Rating Agencies” means, collectively, at any time, each nationally recognized rating agency which shall have been requested to rate the Certificates and which shall then be rating the Certificates.  The initial Rating Agencies will be Moody’s Investors Service, Inc. and Standard & Poor’s Rating Services, a division of The McGraw–Hill Companies Inc.

 

5



 

Rating Agency Confirmation” means, with respect to any action proposed to be taken, a written confirmation from each of the Rating Agencies that such action would not result in (i) a reduction of the rating for any Class of Certificates below the then current rating for such Class of Certificates (without regard to the Policy) or (ii) a withdrawal or suspension of the rating of any Class of Certificates.

 

Register” means the register maintained pursuant to Sections 3.04 and 7.12 of each Pass Through Trust Agreement.

 

Regular Distribution Dates” shall mean February 15, May 15, August 15 and November 15 of each year, commencing February 15, 2005.

 

Replacement Deposit Agreement” means, for each Class of Certificates, a deposit agreement substantially in the form of the replaced Deposit Agreement for such Class of Certificates as shall permit the Rating Agencies to confirm in writing their respective ratings then in effect for such Class of Certificates (before the downgrading of such ratings, if any, as a result of the downgrading of the Depositary and without regard to the Policy).

 

Replacement Depositary” has the meaning set forth in Section 4(a)(v) of the Note Purchase Agreement.

 

Scheduled Financing Date” has the meaning set forth in Section 1(b) hereof.

 

Section 1110” means 11 U.S.C.  § 1110 of the Bankruptcy Code or any successor or analogous Section of the federal bankruptcy Law in effect from time to time.

 

Series C Equipment Notes” means Equipment Notes issued under an Indenture and designated as “Series C” thereunder.

 

Series G-1 Equipment Notes” means Equipment Notes issued under an Indenture and designated as “Series G-1” thereunder.

 

Series G-2 Equipment Notes” means Equipment Notes issued under an Indenture and designated as “Series G-2” thereunder.

 

Special Indenture Event of Default” means an “Event of Default” as defined in any Indenture resulting from the failure of the Company to make any scheduled payments on any Equipment Note.

 

Subordination Agent” has the meaning set forth in the first paragraph of the Note Purchase Agreement.

 

Substitute Aircraft” has the meaning set forth in Section 1(e) of the Note Purchase Agreement.

 

Taxes” means all license, recording, documentary, registration and other similar fees and all taxes, levies, imposts, duties, charges, assessments or withholdings of any nature

 

6



 

whatsoever imposed by any Taxing Authority, together with any penalties, additions to tax, fines or interest thereon or additions thereto.

 

Taxing Authority” means any federal, state or local government or other taxing authority in the United States, any foreign government or any political subdivision or taxing authority thereof, any international taxing authority or any territory or possession of the United States or any taxing authority thereof.

 

Three-Month LIBOR” has the meaning assigned to such term in the Indenture.

 

Triggering Event” has the meaning assigned to such term in the Intercreditor Agreement.

 

Underwriters” has the meaning set forth in the fourth recital to the Note Purchase Agreement.

 

Unindemnified Taxes” has the meaning assigned to such term in the Intercreditor Agreement.

 

WTC” has the meaning set forth in the first paragraph of the Note Purchase Agreement.

 

7



 

EXHIBIT A TO

NOTE PURCHASE AGREEMENT

 

FORM OF FUNDING NOTICE

 

Dated as of                              ,         

 

To each of the addressees listed

  in Schedule A hereto

 

Re:                               Delivery Notice in accordance with Note Purchase
Agreement referred to below

 

Gentlemen:

 

Reference is made to the Note Purchase Agreement dated as of November 15, 2004 among JetBlue Airways Corporation (the “Company”), Wilmington Trust Company, as Pass Through Trustee under each of the Pass Through Trust Agreements (as defined therein) (the “Pass Through Trustee”), Wilmington Trust Company, as Subordination Agent (the “Subordination Agent”), Wilmington Trust Company, as Escrow Agent (the “Escrow Agent”) and Wilmington Trust Company, as Paying Agent (the “Paying Agent”) (as in effect from time to time, the “Note Purchase Agreement”).  Unless otherwise defined herein, capitalized terms used herein shall have the meanings set forth in the Note Purchase Agreement or, to the extent not defined therein, the Intercreditor Agreement.

 

Pursuant to Section 1(b) of the Note Purchase Agreement, the undersigned hereby notifies you, in respect of the Airbus A320-232 aircraft with manufacturer’s serial number                  (the “Aircraft”), of the following:

 

(1)           The Scheduled Financing Date of the Aircraft is                      ,         ; and

 

(2)           The aggregate amount of each series of Equipment Notes to be issued, and purchased by the respective Pass Through Trustees, on the Scheduled Financing Date, in connection with the financing of such Aircraft is as follows:

 

(a)                                  the Class G-1 Trustee shall purchase Series G-1 Equipment Notes in the amount of $                  ;

 

(b)                                 the Class G-2 Trustee shall purchase Series G-2 Equipment Notes in the amount of $                  ; and

 

(c)                                  the Class C Trustee shall purchase Series C Equipment Notes in the amount of $                  .

 

The Company hereby instructs the Class G-1 Trustee to (i) execute a Withdrawal Certificate in the form of Annex A hereto dated                      ,            [a date which is no later than one Business Day prior to the Scheduled Financing Date] and attach thereto a Notice of

 

1



 

Purchase Withdrawal dated such date completed as set forth on Exhibit A hereto and (ii) deliver such Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.

 

The Company hereby instructs the Class G-2 Trustee to (i) execute a Withdrawal Certificate in the form of Annex A hereto dated                      ,            [a date which is no later than one Business Day prior to the Scheduled Financing Date] and attach thereto a Notice of Purchase Withdrawal dated such date completed as set forth on Exhibit B hereto and (ii) deliver such Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.

 

The Company hereby instructs the Class C Trustee to (i) execute a Withdrawal Certificate in the form of Annex A hereto dated                      ,            [a date which is no later than one Business Day prior to the Scheduled Financing Date] and attach thereto a Notice of Purchase Withdrawal dated such date completed as set forth on Exhibit C hereto and (ii) deliver such Withdrawal Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.

 

The Company hereby instructs each Pass Through Trustee to (i) purchase Equipment Notes of a series and in an amount set forth opposite such Pass Through Trustee in clause (2) above with a portion of the proceeds of the withdrawals of Deposits referred to in the applicable Notice of Purchase Withdrawal referred to above and (ii) re–deposit with the Depositary the excess, if any, of the amount so withdrawn over the purchase price of such Equipment Notes.

 

The Company hereby instructs each Pass Through Trustee to (a) enter into the Participation Agreement dated as of                      ,            among the Company, as Owner, the Subordination Agent, the Pass Through Trustee, Wilmington Trust Company, as Mortgagee, (b) perform its obligations thereunder and (c) deliver such certificates, documents and legal opinions relating to such Pass Through Trustee as required thereby.

 

Yours faithfully,

 

JetBlue Airways Corporation

 

 

By:

 

 

Name:

Title:

 

2



 

SCHEDULE A

 

Wilmington Trust Company, as

  Pass Through Trustee, Subordination

  Agent, Escrow Agent and Paying Agent

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

Attention:  Corporate Trust

  Administration

Facsimile: (302) 636-4140

 

Standard & Poor’s Ratings Services

55 Water Street, 35th Floor

New York, New York 10041

Attention:  Betsy R. Snyder

Facsimile: (212) 438–7811

 

Moody’s Investors Service, Inc.

99 Church Street

New York, New York 10007

Attention:  Richard Bittenbender

Facsimile: (212) 553–4661

 

MBIA Insurance Corporation

113 King Street

Armonk, New York 10504

Attention: Insured Portfolio Management, Structural Finance

Facsimile: (914) 765-3163

 

HSH Nordbank AG, New York Branch

590 Madison Ave.

New York, New York 10022-2540

Attention:  Transportation-Americas

Facsimile: (212) 407-6033

 

3



 

ANNEX A TO EXHIBIT A

 

WITHDRAWAL CERTIFICATE

 

(Class     )(1)

 

WILMINGTON TRUST COMPANY,

as Escrow Agent

 

Dear Sirs:

 

Reference is made to the Escrow and Paying Agent Agreement, dated as of November 15, 2004 (the “Agreement”).  We hereby certify to you that the conditions to the obligations of the undersigned to execute a Participation Agreement pursuant to the Note Purchase Agreement have been satisfied.  Pursuant to Section 1.02(c) of the Agreement, please execute the attached Notice of Purchase Withdrawal and immediately transmit by facsimile to the Depositary, at 212-407-6033, Attention:  Transportation - Americas.

 

 

Very truly yours,

 

 

 

WILMINGTON TRUST COMPANY, not
in its individual capacity by solely as Pass
Through Trustee

 

 

 

 

 

By:

 

 

 

Name:

 

Title:

 

 

Dated:                        , 200

 

 

 


(1)          Insert letter of appropriate class of Certificates.

 

1



 

ANNEX A TO FUNDING NOTICE

 

NOTICE OF PURCHASE WITHDRAWAL

 

HSH Nordbank AG, New York Branch

590 Madison Avenue

New York, NY 10022-2540

Attention:  Transportation - Americas

Telecopier:  212-407-6033

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-1) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $                  , Account No.                             .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [                      , Account No.                     , Reference:                            ] on                            , 200  , upon the telephonic request of a representative of Wilmington Trust Company, the Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

Title:

 

 

Dated:                     , 200  

 

 

2



 

EXHIBIT B

 

NOTICE OF PURCHASE WITHDRAWAL

 

HSH Nordbank AG, New York Branch

590 Madison Avenue

New York, NY 10022-2540

Attention:  Transportation - Americas

Telecopier:  212-407-6033

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class G-2) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $                  , Account No.                             .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [                      , Account No.                     , Reference:                            ] on                            , 200  , upon the telephonic request of a representative of Wilmington Trust Company, the Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

Title:

 

 

Dated:                     , 200  

 

 

1



 

EXHIBIT C

 

NOTICE OF PURCHASE WITHDRAWAL

 

HSH Nordbank AG, New York Branch

590 Madison Avenue

New York, NY 10022-2540

Attention:  Transportation - Americas

Telecopier:  212-407-6033

 

Gentlemen:

 

Reference is made to the Deposit Agreement (Class C) dated as of November 15, 2004 (the “Deposit Agreement”) between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, acting through its New York Branch, as Depositary (the “Depositary”).

 

In accordance with Section 2.5(a) of the Deposit Agreement, the undersigned hereby requests the withdrawal of the entire amount of the Deposit, $              , Account No.                     .

 

The undersigned hereby directs the Depositary to pay the proceeds of the Deposit to [                    , Account No.               , Reference:                      ] on                        , 200  , upon the telephonic request of a representative of the Wilmington Trust Company, Pass Through Trustee.

 

 

WILMINGTON TRUST COMPANY, as
Escrow Agent

 

 

 

 

 

By:

 

 

 

Name:

 

Title:

 

 

Dated:                     , 200  

 

 

1



 

EXHIBIT B–1 TO

NOTE PURCHASE AGREEMENT

 

FORM OF PARTICIPATION AGREEMENT

 

1



 

EXHIBIT B–2 TO

NOTE PURCHASE AGREEMENT

 

FORM OF INDENTURE

 

1


 

EX-4.26 28 a04-11378_4ex4d26.htm EX-4.26

Exhibit 4.26

 

TRUST INDENTURE AND MORTGAGE
[NXXXJB]


dated as of [Date]

between

JETBLUE AIRWAYS CORPORATION,

Owner

and

WILMINGTON TRUST COMPANY,

not in its individual capacity,
except as expressly stated herein, but solely as Mortgagee,
Mortgagee


 

Equipment Notes Covering
One Airbus A320-232 Aircraft
Bearing U.S. Registration Mark NXXXJB
And Manufacturer’s Serial No. [MSN]


 



 

TABLE OF CONTENTS

 

ARTICLE I

 

DEFINITIONS

 

 

 

 

 

 

 

ARTICLE II

 

THE EQUIPMENT NOTES

 

 

2.01

 

Form of Equipment Notes

 

 

2.02

 

Issuance and Terms of Equipment Notes

 

 

2.03

 

Method of Payment

 

 

2.04

 

Application of Payments

 

 

2.05

 

Termination of Interest in Collateral

 

 

2.06

 

Registration, Transfer and Exchange of Equipment Notes

 

 

2.07

 

Mutilated, Destroyed, Lost or Stolen Equipment Notes

 

 

2.08

 

Payment of Expenses on Transfer; Cancellation

 

 

2.09

 

Mandatory Redemptions of Equipment Notes

 

 

2.10

 

Voluntary Redemptions of Equipment Notes

 

 

2.11

 

Redemptions; Notice of Redemption

 

 

2.12

 

Subordination

 

 

 

 

 

 

 

ARTICLE III

 

RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS

 

 

3.01

 

Basic Distributions

 

 

3.02

 

Event of Loss; Replacement; Optional Redemption

 

 

3.03

 

Payments After Acceleration

 

 

3.04

 

Certain Payments

 

 

3.05

 

Other Payments

 

 

3.06

 

Payments to the Owner

 

 

3.07

 

Cooperation

 

 

 

 

 

 

 

ARTICLE IV

 

COVENANTS OF THE OWNER

 

 

4.01

 

Liens

 

 

4.02

 

Possession, Operation and Use, Registration and Markings

 

 

4.03

 

Inspection

 

 

4.04

 

Maintenance; Replacement and Pooling of Parts, Alterations, Modifications and Additions; Substitution of Engines

 

 

4.05

 

Loss, Destruction or Requisition

 

 

4.06

 

Insurance

 

 

4.07

 

Merger of Owner

 

 

 

 

 

 

 

ARTICLE V

 

EVENTS OF DEFAULT; REMEDIES OF MORTGAGEE

 

 

5.01

 

Event of Default

 

 

5.02

 

Remedies

 

 

5.03

 

Return of Aircraft, Etc

 

 

5.04

 

Remedies Cumulative

 

 

5.05

 

Discontinuance of Proceedings

 

 

5.06

 

Waiver of Past Defaults

 

 

5.07

 

Appointment of Receiver

 

 

5.08

 

Mortgagee Authorized to Execute Bills of Sale, Etc

 

 

 

i



 

5.09

 

Rights of Note Holders to Receive Payment

 

 

 

 

 

 

 

ARTICLE VI

 

DUTIES OF THE MORTGAGEE

 

 

6.01

 

Notice of Event of Default

 

 

6.02

 

Action Upon Instructions; Certain Rights and Limitations

 

 

6.03

 

Indemnification

 

 

6.04

 

No Duties Except as Specified in Trust Indenture or Instructions

 

 

6.05

 

No Action Except Under Trust Indenture or Instructions

 

 

6.06

 

Investment of Amounts Held by Mortgagee

 

 

 

 

 

 

 

ARTICLE VII

 

THE MORTGAGEE

 

 

7.01

 

Acceptance of Trusts and Duties

 

 

7.02

 

Absence of Duties

 

 

7.03

 

No Representations or Warranties as to Aircraft or Documents

 

 

7.04

 

No Segregation of Monies; No Interest

 

 

7.05

 

Reliance; Agreements; Advice of Counsel

 

 

7.06

 

Compensation

 

 

7.07

 

Instructions from Note Holders

 

 

 

 

 

 

 

ARTICLE VIII

 

INDEMNIFICATION

 

 

8.01

 

Scope of Indemnification

 

 

 

 

 

 

 

ARTICLE IX

 

SUCCESSOR AND SEPARATE TRUSTEES

 

 

9.01

 

Resignation of Mortgagee; Appointment of Successor

 

 

9.02

 

Appointment of Additional and Separate Trustees

 

 

 

 

 

 

 

ARTICLE X

 

SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE AND OTHER DOCUMENTS

 

 

10.01

 

Instructions of Majority; Limitations

 

 

10.02

 

Mortgagee Protected

 

 

10.03

 

Documents Mailed to Note Holders

 

 

10.04

 

No Request Necessary for Trust Indenture Supplement

 

 

 

 

 

 

 

ARTICLE XI

 

MISCELLANEOUS

 

 

11.01

 

Termination of Trust Indenture

 

 

11.02

 

No Legal Title to Collateral in Note Holders

 

 

11.03

 

Sale of Aircraft by Mortgagee Is Binding

 

 

11.04

 

Trust Indenture for Benefit of Owner, Mortgagee, Note Holders, Related Secured Parties and the other Indenture Indemnitees

 

 

11.05

 

Notices

 

 

11.06

 

Severability

 

 

11.07

 

No Oral Modification or Continuing Waivers

 

 

11.08

 

Successors and Assigns

 

 

11.09

 

Headings

 

 

11.10

 

Normal Commercial Relations

 

 

 

ii




 

TRUST INDENTURE AND MORTGAGE [NXXXJB]

 

TRUST INDENTURE AND MORTGAGE [NXXXJB], dated as of [Date] (“Trust Indenture”), between JETBLUE AIRWAYS CORPORATION, a Delaware corporation (“Owner”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity, except as expressly stated herein, but solely as mortgagee hereunder (together with its successors hereunder, the “Mortgagee”).

 

W I T N E S S E T H:

 

WHEREAS, all capitalized terms used herein shall have the respective meanings set forth or referred to in Article I hereof;

 

WHEREAS, the parties hereto desire by this Trust Indenture, among other things, (i) to provide for the issuance by the Owner of the Equipment Notes and (ii) to provide for the assignment, mortgage and pledge by the Owner to the Mortgagee, as part of the Collateral hereunder, among other things, of all of the Owner’s right, title and interest in and to the Aircraft and, except as hereinafter expressly provided, all payments and other amounts received hereunder in accordance with the terms hereof, as security for, among other things, the Owner’s obligations to the Note Holders and the Indenture Indemnitees;

 

WHEREAS, all things have been done to make the Equipment Notes, when executed by the Owner and authenticated and delivered by the Mortgagee hereunder, the valid, binding and enforceable obligations of the Owner; and

 

WHEREAS, all things necessary to make this Trust Indenture the valid, binding and legal obligation of the Owner for the uses and purposes herein set forth, in accordance with its terms, have been done and performed and have happened;

 

GRANTING CLAUSE

 

NOW, THEREFORE, THIS TRUST INDENTURE AND MORTGAGE WITNESSETH, that, to secure the prompt payment of the Original Amount of, interest on, Break Amount, if any, Prepayment Premium, if any, and all other amounts due with respect to, all Equipment Notes from time to time outstanding hereunder according to their tenor and effect and to secure the performance and observance by the Owner of all the agreements, covenants and provisions contained herein and in the Participation Agreement and in the Equipment Notes (the “Secured Obligations”), for the benefit of the Note Holders and each of the Indenture Indemnitees, and to secure the Related Secured Obligations under any Related Indenture for the benefit of the Related Secured Parties and in consideration of the premises and of the covenants herein contained, and of the acceptance of the Equipment Notes by the holders thereof, and for other good and valuable consideration the receipt and adequacy whereof are hereby acknowledged, the Owner has granted, bargained, sold, assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto the Mortgagee, its successors in trust and assigns, for the security and benefit of the Note Holders, the Related Secured Parties and each of the Indenture Indemnitees, a first priority security interest in and mortgage lien on all right, title and interest of the Owner in, to and under the following described property, rights and privileges, whether now

 



 

or hereafter acquired (which, collectively, together with all property hereafter specifically subject to the Lien of this Trust Indenture by the terms hereof or any supplement hereto, are included within, and are referred to as, the “Collateral”), to wit:

 

(1)           The Airframe and Engines more particularly described in the initial Trust Indenture Supplement dated the date hereof, or any other Trust Indenture Supplement executed and delivered as provided herein, as the same is now and will hereafter be constituted, whether now owned by the Owner or hereafter acquired, and in the case of such Engines, whether or not any such Engine shall be installed in or attached to the Airframe or any other airframe, together with (a) all Parts of whatever nature, which are from time to time included within the definitions of “Airframe” or “Engines”, whether now owned or hereafter acquired, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to the Airframe and Engines (other than additions, improvements, accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts) and (b) all Aircraft Documents;

 

(2)           All of Owner’s rights and interests in and to clause 12 (Warranties and Service Life Policy) and Clause 13 (Patent Indemnity) of the Purchase Agreement insofar as they relate to the Aircraft or any element thereof, the warranties and indemnities, including all limitations thereto, provided in the Engine Agreement and all claims arising under such provisions in respect of the Engines and the Bills of Sale (reserving to the Owner, however, all of the Owner’s other rights and interest in and to the Purchase Agreement and the Engine Agreement) together with all rights, powers, privileges, options and other benefits of the Owner in respect of such provisions (subject to such reservation) with respect to the Airframe or the Engines, including, without limitation, the right to make all waivers and agreements, to give and receive all notices and other instruments or communications, and to take such action upon the occurrence of a default in respect of such provisions, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted thereby or by law, and to do any and all other things which the Owner is or may be entitled to do in respect of such provisions (subject to such reservation), subject, with respect to the Purchase Agreement, to the terms and conditions of the Consent and Agreement and, with respect to the Engine Agreement, the Engine Consent and Agreement;

 

(3)           All proceeds with respect to the requisition of title to or use of the Aircraft or any Engine by any Government Entity or from the sale or other disposition of the Aircraft, the Airframe, any Engine or other property described in any of these Granting Clauses by the Mortgagee pursuant to the terms of this Trust Indenture, and all insurance proceeds (other than third party liability insurance proceeds) with respect to the Aircraft, the Airframe, any Engine or any part thereof, but excluding any insurance maintained by the Owner and not required under Section 4.06;

 

(4)           All rents, revenues and other proceeds collected by the Mortgagee pursuant to Section 5.03(b) and all monies and securities from time to time deposited or required to be deposited with the Mortgagee by or for the account of the Owner pursuant to any terms of this Trust Indenture held or required to be held by the Mortgagee hereunder; and

 

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(5)           All proceeds of the foregoing;

 

PROVIDED, HOWEVER, that notwithstanding any of the foregoing provisions, so long as no Event of Default shall have occurred and be continuing, (a) the Mortgagee shall not take or cause to be taken any action contrary to the Owner’s or any Permitted Lessee’s right hereunder to quiet enjoyment of the Airframe and Engines, and to possess, use, retain and control the Airframe and Engines and all revenues, income and profits derived therefrom, and (b) the Owner shall have the right, to the exclusion of the Mortgagee, with respect to the Purchase Agreement and the Engine Agreement assigned hereunder, to exercise in the Owner’s name all rights and powers assigned hereunder under the Purchase Agreement and the Engine Agreement (other than to amend, modify or waive any of the warranties or indemnities contained therein and assigned hereunder, except in the exercise of the Owner’s reasonable business judgment) and to retain any recovery or benefit resulting from the enforcement of any warranty or indemnity under the Purchase Agreement and Engine Agreement; and provided further that, notwithstanding the occurrence or continuation of an Event of Default, the Mortgagee shall not enter into any amendment of the Purchase Agreement or Engine Agreement which would increase the obligations of the Owner thereunder.

 

TO HAVE AND TO HOLD all and singular the aforesaid property unto the Mortgagee, and its successors and assigns, in trust for the equal and proportionate benefit and security of the Note Holders, the Related Secured Parties and the Indenture Indemnitees, except as provided in Section 2.12 and Article III hereof, without any preference, distinction or priority of any one Equipment Note over any other by reason of priority of time of issue, sale, negotiation, date of maturity thereof or otherwise for any reason whatsoever, and for the uses and purposes and in all cases and as to all property specified in paragraphs (1) through (5) inclusive above, subject to the terms and provisions set forth in this Trust Indenture.

 

It is expressly agreed that anything herein contained to the contrary notwithstanding, the Owner shall remain liable under the Indenture Agreements to perform all of the obligations assumed by it thereunder, except to the extent prohibited or excluded from doing so pursuant to the terms and provisions thereof, and the Mortgagee, the Note Holders, the Related Secured Parties and the Indenture Indemnitees shall have no obligation or liability under the Indenture Agreements by reason of or arising out of the assignment hereunder, nor shall the Mortgagee, the Note Holders, the Related Secured Parties or the Indenture Indemnitees be required or obligated in any manner to perform or fulfill any obligations of the Owner under or pursuant to the Indenture Agreements, or, except as herein expressly provided, to make any payment, or to make any inquiry as to the nature or sufficiency of any payment received by it, or present or file any claim, or take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

 

The Owner does hereby constitute the Mortgagee the true and lawful attorney of the Owner, irrevocably, granted for good and valuable consideration and coupled with an interest and with full power of substitution, and with full power (in the name of the Owner or otherwise) to ask for, require, demand and receive any and all monies and claims for monies (in each case including insurance and requisition proceeds) due and to become due under or arising out of the Indenture Agreements, and all other property which now or hereafter constitutes part of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to

 

3



 

file any claims or to take any action or to institute any proceedings which the Mortgagee may deem to be necessary or advisable in the premises; provided that the Mortgagee shall not exercise any such rights except upon the occurrence and during the continuance of an Event of Default hereunder.

 

Without limiting the generality of the foregoing, but subject to the rights of the Owner hereunder, during the continuance of any Event of Default under this Trust Indenture, the Mortgagee shall have the right under such power of attorney to accept any offer in connection with the exercise of remedies as set forth herein of any purchaser to purchase the Airframe and Engines and upon such purchase to execute and deliver in the name of and on behalf of the Owner an appropriate bill of sale and other instruments of transfer relating to the Airframe and Engines, when purchased by such purchaser, and to perform all other necessary or appropriate acts with respect to any such purchase, and in its discretion to file any claim or take any other action or proceedings,  in its own name, but not in the name of the Owner, which the Mortgagee may deem necessary or appropriate to protect and preserve the right, title and interest of the Mortgagee in and to such other sums and the security intended to be afforded hereby; provided, however, that no action of the Mortgagee pursuant to this paragraph shall increase the obligations or liabilities of the Owner to any Person beyond those obligations and liabilities specifically set forth in this Trust Indenture and in the other Operative Agreements.

 

The Owner agrees that at any time and from time to time, upon the written request of the Mortgagee, the Owner will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents (including without limitation UCC continuation statements) as the Mortgagee may reasonably deem necessary to perfect, preserve or protect the mortgage, security interests and assignments created or intended to be created hereby or to obtain for the Mortgagee the full benefits of the assignment hereunder and of the rights and powers herein granted.

 

The Owner does hereby warrant and represent that it has not assigned or pledged any of its right, title or interest in the Collateral to anyone other than the Mortgagee except for Liens on the Collateral that are released on or prior to the Closing Date.

 

IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as follows:

 

ARTICLE I

 

DEFINITIONS

 

Capitalized terms used but not defined herein shall have the respective meanings set forth or incorporated by reference, and shall be construed in the manner described, in Annex A hereto.  The “General Provisions” set forth in Annex A are hereby incorporated as if set forth in full herein.

 

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ARTICLE II

 

THE EQUIPMENT NOTES

 

2.01        Form of Equipment Notes.  The Equipment Notes shall be substantially in the form set forth below:

 

THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE.  ACCORDINGLY, THIS EQUIPMENT NOTE MAY NOT BE SOLD UNLESS EITHER REGISTERED UNDER THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM SUCH REGISTRATIONS IS AVAILABLE.

 

JETBLUE AIRWAYS CORPORATION

 

SERIES [      ] EQUIPMENT NOTE DUE [       ] ISSUED IN CONNECTION WITH THE AIRBUS MODEL A320-232 AIRCRAFT BEARING UNITED STATES REGISTRATION NUMBER NXXXJB.

 

No.

[Date]

 

MATURITY DATE

INTEREST RATE

 

Three-Month LIBOR + [               ]%

[                        ]

 

JETBLUE AIRWAYS CORPORATION, a Delaware corporation (“Owner”), hereby promises to pay to WILMINGTON TRUST COMPANY, as Subordination Agent under the Intercreditor Agreement, or the registered assignee thereof, the principal sum of $             (the “Original Amount”), together with interest on the amount of the Original Amount remaining unpaid from time to time which shall accrue with respect to each Interest Period at the applicable Debt Rate (calculated on the basis of a year of 360 days and the actual number of days elapsed) in effect for such Interest Period from the date hereof until paid in full.  The Original Amount of this Equipment Note shall be payable in installments on the dates set forth in Schedule I hereto equal to the corresponding percentage of the Original Amount of this Equipment Note set forth in Schedule I hereto.  Accrued but unpaid interest shall be due and payable in quarterly installments on February 15, May 15, August 15 and November 15 of each year commencing on                                  ,                .

 

Notwithstanding the foregoing, the final payment made on this Equipment Note shall be in an amount sufficient to discharge in full the unpaid Original Amount and all accrued and unpaid interest on, and any other amounts due under, this Equipment Note.  Notwithstanding anything to the contrary contained herein, whenever the date scheduled for any payment to be made hereunder or under the Trust Indenture shall not be a Business Day, then such payment shall not be due on such scheduled date but shall be due on the next succeeding Business Day.

 

For purposes hereof, the term “Trust Indenture” means the Trust Indenture and Mortgage [NXXXJB] dated as of [Date], between the Owner and Wilmington Trust Company

 

5



 

(the “Mortgagee”), as the same may be amended or supplemented from time to time.  All other capitalized terms used in this Equipment Note and not defined herein shall have the respective meanings assigned in the Trust Indenture.

 

This Equipment Note shall bear interest, payable on demand, at the applicable Payment Due Rate (calculated on the basis of a year of 360 days and the actual number of days elapsed) on any overdue Original Amount, any overdue Break Amount, any overdue Prepayment Premium, and (to the extent permitted by applicable Law) any overdue interest and any other amounts payable hereunder which are overdue, in each case for the period the same is overdue.  Amounts shall be overdue if not paid when due (whether at stated maturity, by acceleration or otherwise).

 

There shall be maintained an Equipment Note Register for the purpose of registering transfers and exchanges of Equipment Notes at the Corporate Trust Office of the Mortgagee or at the office of any successor in the manner provided in Section 2.06 of the Trust Indenture.

 

The Original Amount and interest and other amounts due hereunder shall be payable in Dollars in immediately available funds at the Corporate Trust Office of the Mortgagee, or as otherwise provided in the Trust Indenture.  Each such payment shall be made on the date such payment is due and without any presentment or surrender of this Equipment Note, except that in the case of any final payment with respect to this Equipment Note, the Equipment Note shall be surrendered promptly thereafter to the Mortgagee for cancellation.

 

The holder hereof, by its acceptance of this Equipment Note, agrees that, except as provided in the Trust Indenture, each payment of the Original Amount, Break Amount, if any, Prepayment Premium, if any, and interest received by it hereunder shall be applied, first, to the payment of accrued interest on this Equipment Note (as well as any interest on any overdue Original Amount, any overdue Break Amount, any overdue Prepayment Premium, or, to the extent permitted by Law, any overdue interest and other amounts hereunder) to the date of such payment, second, to the payment of the Original Amount of this Equipment Note then due, third, to the payment of Break Amount, if any, Prepayment Premium, if any, and any other amount due hereunder or under the Trust Indenture, and fourth, the balance, if any, remaining thereafter, to the payment of installments of the Original Amount of this Equipment Note remaining unpaid in the inverse order of their maturity.

 

This Equipment Note is one of the Equipment Notes referred to in the Trust Indenture which have been or are to be issued by the Owner pursuant to the terms of the Trust Indenture and is one of the Related Equipment Notes referred to in each Related Indenture.  The Collateral is held by the Mortgagee as security, in part, for the Equipment Notes.  The provisions of this Equipment Note are subject to the Trust Indenture and each Related Indenture as set forth therein.  Reference is hereby made to the Trust Indenture and each Related Indenture for a complete statement of the rights and obligations of the holder of, and the nature and extent of the security for, this Equipment Note and the rights and obligations of the holders of, and the nature and extent of the security for, any other Equipment Notes executed and delivered under the Trust Indenture and each Related Indenture, as well as for a statement of the terms and conditions of the trusts created by the Trust Indenture and each Related Indenture, to all of which terms and

 

6



 

conditions in the Trust Indenture and each Related Indenture each holder hereof agrees by its acceptance of this Equipment Note.

 

As provided in the Trust Indenture and subject to certain limitations therein set forth, this Equipment Note is exchangeable for a like aggregate Original Amount of Equipment Notes of different authorized denominations, as requested by the holder surrendering the same.

 

Prior to due presentment for registration of transfer of this Equipment Note, the Owner and the Mortgagee shall treat the person in whose name this Equipment Note is registered as the owner hereof for all purposes, whether or not this Equipment Note be overdue, and neither the Owner nor the Mortgagee shall be affected by notice to the contrary.

 

This Equipment Note is subject to redemption as provided in Sections 2.09, 2.10 and 2.11 of the Trust Indenture but not otherwise.  In addition, this Equipment Note may be accelerated as provided in Section 5.02 of the Trust Indenture.

 

[The indebtedness evidenced by this Equipment Note shall, to the extent and in the manner provided in the Trust Indenture, rank in right of payment equally with all Series G-1 Equipment Notes and Series G-2 Equipment Notes.  Principal payments on the Series G-1 Equipment Notes and Series G-2 Equipment Notes will be subordinate to payments of interest on the Series C Equipment Notes.](1)  [Payments of interest on the Series C Equipment Notes will be subordinate and subject in right of payment to the prior payment of interest on the Series G-1 Equipment Notes and Series G-2 Equipment Notes.  Principal payments on the Series C Equipment Notes will be subordinate and subject in right of payment to the prior payment in full of the Secured Obligations (as defined in the Trust Indenture) in respect of the Series G-1 Equipment Notes and Series G-2 Equipment Notes and this Equipment Note is issued subject to such provisions.  The Note Holder of this Equipment Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Mortgagee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Trust Indenture and (c) appoints the Mortgagee his attorney-in-fact for such purpose.](2)

 

Unless the certificate of authentication hereon has been executed by or on behalf of the Mortgagee by manual signature, this Equipment Note shall not be entitled to any benefit under the Trust Indenture or be valid or obligatory for any purpose.

 

THIS EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.

 

*   *   *

 


(1)  Insert for Series G-1 Equipment Notes and Series G-2 Equipment Notes.

(2)  Insert for Series C Equipment Notes.

 

7



 

IN WITNESS WHEREOF, the Owner has caused this Equipment Note to be executed in its corporate name by its officer thereunto duly authorized on the date hereof.

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

8



 

MORTGAGEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Equipment Notes referred to in the within-mentioned Trust Indenture.

 

 

WILMINGTON TRUST COMPANY, as Mortgagee

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

9



 

SCHEDULE I

 

EQUIPMENT NOTE AMORTIZATION

 

Payment Date

 

Percentage of
Original Amount to be Paid

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[SEE SCHEDULE I TO TRUST INDENTURE
WHICH IS INSERTED UPON ISSUANCE]

 

*   *   *

 

10



 

2.02        Issuance and Terms of Equipment Notes.  The Equipment Notes shall be dated the date of issuance thereof, shall be issued in three separate series consisting of Series G-1, Series G-2 and Series C and in the maturities and principal amounts and shall bear interest as specified in Schedule I hereto.  On the date thereof, each Equipment Note shall be issued to the Subordination Agent on behalf of the Pass Through Trustee under the Pass Through Trust Agreements.  The Equipment Notes shall be issued in registered form only.  The Equipment Notes shall be issued in denominations of $1,000 and integral multiples thereof, except that one Equipment Note of each Series may be in an amount that is not an integral multiple of $1,000.

 

Each Equipment Note shall bear interest with respect to each Interest Period at the applicable Debt Rate in effect for such Interest Period (calculated on the basis of a year of 360 days and the actual number of days elapsed) on the unpaid Original Amount thereof from time to time outstanding, payable in arrears on             ,            , and on each February 15, May 15, August 15 and November 15 of each year thereafter until maturity.  The Original Amount of each Series G-1 Equipment Note and each Series C Equipment Note shall be payable on the dates and in the installments equal to the corresponding percentage of the Original Amount as set forth in Schedule I hereto which shall be attached as Schedule I to the Equipment Notes.  The Original Amount of each Series G-2 Equipment Note shall be paid in one installment on November 15, 2016.  Notwithstanding the foregoing, the final payment made under each Equipment Note shall be in an amount sufficient to discharge in full the unpaid Original Amount and all accrued and unpaid interest on, and any other amounts due under, such Equipment Note.  Each Equipment Note shall bear interest at the applicable Payment Due Rate (calculated on the basis of a year of 360 days and the actual number of days elapsed) on any part of the Original Amount, any Break Amount, if applicable, or any Prepayment Premium, if applicable, and, to the extent permitted by applicable Law, interest and any other amounts payable thereunder not paid when due for any period during which the same shall be overdue, in each case for the period the same is overdue.  The period applicable to the Payment Due Rate shall be the period commencing on the due date of such Original Amount, Break Amount, Prepayment Premium interest or other amount and ending on the same calendar day in the next succeeding month.  Amounts shall be overdue if not paid when due (whether at stated maturity, by acceleration or otherwise).  Notwithstanding anything to the contrary contained herein, whenever the date scheduled for any payment to be made hereunder or under any Equipment Note shall not be a Business Day, then such payment shall not be due on such scheduled date but shall be due on the next succeeding Business Day.

 

The Owner agrees to pay to the Mortgagee for distribution in accordance with Section 3.04 hereof:  (i) to the extent not payable (whether or not in fact paid) under Section 6(a) of the Note Purchase Agreement, an amount equal to the fees payable to the Primary Liquidity Provider under Section 2.03 of each Primary Liquidity Facility multiplied by a fraction the numerator of which shall be the then outstanding aggregate principal amount of all the Equipment Notes and the denominator of which shall be the sum of (x) the then outstanding aggregate principal amount of all “Series G-1 Equipment Notes”, “Series G-2 Equipment Notes” and “Series C Equipment Notes” (each as defined in the Note Purchase Agreement with respect to all of the Indentures (as defined in the Note Purchase Agreement)) and (y) the then outstanding aggregate amount of Deposits under the Deposit Agreements pertaining to the Class G-1 Trust, Class G-2 Trust and Class C Trust; (ii) to the extent not payable (whether or not in fact paid) under Section 6(b) of the Note Purchase Agreement, an amount equal to the fees

 

11



 

payable to the Policy Provider under Section 3.02 of the Policy Provider Agreement (as defined in the Note Purchase Agreement) multiplied by a fraction the numerator of which shall be the sum of the then outstanding aggregate principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes and the denominator of which shall be the sum of (x) the then outstanding aggregate principal amount of all “Series G-1 Equipment Notes” and “Series G-2 Equipment Notes” (each as defined in the Note Purchase Agreement with respect to all of the Indentures (as defined in the Note Purchase Agreement)) and (y) the then outstanding aggregate amount of the Deposits under the Deposit Agreement pertaining to the Class G-1 Trust and Class G-2 Trust; (iii) the amount equal to interest on any Downgrade Advance (other than any Applied Downgrade Advance) payable under Section 3.07 of each Primary Liquidity Facility minus Investment Earnings from such Downgrade Advance multiplied by a fraction the numerator of which shall be the then outstanding aggregate principal amount of all the Equipment Notes and the denominator of which shall be the then outstanding aggregate principal amount of all “Series G-1 Equipment Notes”, “Series G-2 Equipment Notes” and “Series C Equipment Notes” (each as defined in the Note Purchase Agreement with respect to all of the Indentures (as defined in the Note Purchase Agreement)); (iv) the amount equal to interest on any Non-Extension Advance (other than any Applied Non-Extension Advance) payable under Section 3.07 of each Primary Liquidity Facility minus Investment Earnings from such Non-Extension Advance multiplied by the fraction specified in the foregoing clause (iii); (v) if any payment default shall have occurred and be continuing with respect to interest on any Equipment Notes, the excess, if any, of (1) an amount equal to interest on any Unpaid Advance, Applied Downgrade Advance or Applied Non-Extension Advance payable under Section 3.07 of each Primary Liquidity Facility (or in the case of the Series G-1 Equipment Notes or Series G-2 Equipment Notes, if the Policy Provider has made a payment equivalent to such an Advance, as would have been payable under Section 3.07 of the Primary Liquidity Facility in respect of the Class G-1 Certificates or Class G-2 Certificates had such Advance been made) over (2) the sum of Investment Earnings from any Final Advance plus any amount of interest at the Payment Due Rate actually payable (whether or not in fact paid) by Owner on the overdue scheduled interest on the “Equipment Notes” (as defined in the Note Purchase Agreement in respect of which such Unpaid Advance, Applied Downgrade Advance or Applied Non-Extension Advance was made by the Primary Liquidity Provider (or, in the case of the Series G-1 Equipment Notes or Series G-2 Equipment Notes, an equivalent payment was made by the Policy Provider) multiplied by a fraction the numerator of which shall be the then aggregate overdue amounts of interest on the Equipment Notes (other than interest becoming due and payable solely as a result of acceleration of any such Equipment Notes) and the denominator of which shall be the then aggregate overdue amounts of interest on all “Series G-1 Equipment Notes”, “Series G-2 Equipment Notes” and “Series C Equipment Notes” (each as defined in the Note Purchase Agreement) (other than interest becoming due and payable solely as a result of acceleration of any such “Equipment Notes”); (vi) any other amounts owed to the applicable Primary Liquidity Provider by the Subordination Agent as borrower under each Primary Liquidity Facility multiplied by the fraction specified in the foregoing clause (iii) other than (A) amounts due as repayment of advances thereunder or as interest on such advances, except to the extent payable pursuant to clause (ii), (iii) or (iv) above and (B) fees payable under Section 2.03 of each Primary Liquidity Facility, (vii) all compensation and reimbursement of expenses and disbursements payable by the Owner to the Policy Provider under the Policy Provider Agreement except to the extent payable pursuant to clause (ii) above multiplied by the fraction specified in

 

12



 

the foregoing clause (ii) (without taking into account clause (y) thereof), (viii) Owner’s pro rata share of all compensation and reimbursement of expenses, disbursements and advances payable by Owner under the Pass Through Trust Agreements, (ix) Owner’s pro rata share of all compensation and reimbursement of expenses and disbursements payable to the Subordination Agent under the Intercreditor Agreement except with respect to any Unindemnified Taxes incurred by the Subordination Agent in connection with the transactions contemplated by the Intercreditor Agreement and (x) in the event Owner requests any amendment to any Operative Agreement or Pass Through Agreement, Owner’s pro rata share of all reasonable fees and expenses (including, without limitation, fees and disbursements of counsel) of the Escrow Agents and the Paying Agents in connection therewith payable by the Pass Through Trustees under the Escrow Agreements.  As used herein, “Owner’s pro rata share” means as of any time a fraction, the numerator of which is the principal balance then outstanding of Equipment Notes and the denominator of which is the aggregate principal balance then outstanding of all “Equipment Notes” (as such term is defined in each of the Operative Indentures).  For purposes of this paragraph, the terms “Applied Downgrade Advance”, “Applied Non-Extension Advance”, “Class C Trust”, “Class G-1 Trust”, “Class G-2 Trust”, “Deposit Agreement”, “Deposit”, “Downgrade Advance”, “Final Advance”, “Investment Earnings”, “Non-Extension Advance” and “Unpaid Advance” shall have the meanings specified in each Primary Liquidity Facility or the Intercreditor Agreement, as applicable.

 

The Equipment Notes shall be executed on behalf of the Owner by one of its authorized officers.  Equipment Notes bearing the signatures of individuals who were at any time the proper officers of the Owner shall bind the Owner, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Equipment Notes or did not hold such offices at the respective dates of such Equipment Notes.  The Owner may from time to time execute and deliver Equipment Notes with respect to the Aircraft to the Mortgagee for authentication upon original issue and such Equipment Notes shall thereupon be authenticated and delivered by the Mortgagee upon the written request of the Owner signed by an authorized officer of the Owner; provided, however, that each such request shall specify the aggregate Original Amount of all Equipment Notes to be authenticated hereunder on original issue with respect to the Aircraft.  No Equipment Note shall be secured by or entitled to any benefit under this Trust Indenture or be valid or obligatory for any purposes, unless there appears on such Equipment Note a certificate of authentication in the form provided for herein executed by the Mortgagee by the manual signature of one of its authorized officers and such certificate upon any Equipment Notes be conclusive evidence, and the only evidence, that such Equipment Note has been duly authenticated and delivered hereunder.

 

The aggregate Original Amount of the Equipment Notes issued hereunder shall not exceed                           .

 

2.03        Method of Payment.

 

(a)           The Original Amount of, interest on, any Break Amount, if applicable, or any Prepayment Premium, if applicable, and other amounts due under each Equipment Note or hereunder will be payable in Dollars by wire transfer of immediately available funds not later than 11:00 a.m., New York City time, on the due date of payment to the Mortgagee at the Corporate Trust Office for distribution among the Note Holders in the manner provided herein.

 

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The Owner shall not have any responsibility for the distribution of such payment to any Note Holder.  Notwithstanding the foregoing or any provision in any Equipment Note to the contrary, the Mortgagee will use reasonable efforts to pay or cause to be paid, if so directed in writing by any Note Holder (with a copy to the Owner), all amounts paid by the Owner hereunder and under such holder’s Equipment Note or Equipment Notes to such holder or a nominee therefor (including all amounts distributed pursuant to Article III of this Trust Indenture) by transferring, or causing to be transferred, by wire transfer of immediately available funds in Dollars, prior to 1:00 p.m., New York City time, on the due date of payment, to an account maintained by such holder with a bank located in the continental United States the amount to be distributed to such holder, for credit to the account of such holder maintained at such bank.  If the Mortgagee shall fail to make any such payment as provided in the immediately foregoing sentence after its receipt of funds at the place and prior to the time specified above, the Mortgagee, in its individual capacity and not as trustee, agrees to compensate such holders for loss of use of funds at Debt Rate until such payment is made and the Mortgagee shall be entitled to any interest earned on such funds until such payment is made.  Any payment made hereunder shall be made without any presentment or surrender of any Equipment Note, except that, in the case of the final payment in respect of any Equipment Note, such Equipment Note shall be surrendered to the Mortgagee for cancellation promptly after such payment.  Notwithstanding any other provision of this Trust Indenture to the contrary, the Mortgagee shall not be required to make, or cause to be made, wire transfers as aforesaid prior to the first Business Day on which it is practicable for the Mortgagee to do so in view of the time of day when the funds to be so transferred were received by it if such funds were received after 12:30 p.m., New York City time, at the place of payment.  Prior to the due presentment for registration of transfer of any Equipment Note, the Owner and the Mortgagee shall deem and treat the Person in whose name any Equipment Note is registered on the Equipment Note Register as the absolute owner and holder of such Equipment Note for the purpose of receiving payment of all amounts payable with respect to such Equipment Note and for all other purposes, and none of the Owner or the Mortgagee shall be affected by any notice to the contrary.  So long as any signatory to the Participation Agreement or nominee thereof shall be a registered Note Holder, all payments to it shall be made to the account of such Note Holder specified in Schedule I thereto and otherwise in the manner provided in or pursuant to the Participation Agreement unless it shall have specified some other account or manner of payment by notice to the Mortgagee consistent with this Section 2.03.

 

(b)           The Mortgagee, as agent for the Owner, shall exclude and withhold at the appropriate rate from each payment of Original Amount of, interest on, Break Amount, if applicable, or Prepayment Premium, if applicable, and other amounts due hereunder or under each Equipment Note (and such exclusion and withholding shall constitute payment in respect of such Equipment Note) any and all United States withholding taxes applicable thereto as required by Law.  The Mortgagee agrees to act as such withholding agent and, in connection therewith, whenever any present or future United States taxes or similar charges are required to be withheld with respect to any amounts payable hereunder or in respect of the Equipment Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Note Holders, that it will file any necessary United States withholding tax returns or statements when due, and that as promptly as possible after the payment thereof it will deliver to each Note Holder (with a copy to the Owner) appropriate receipts showing the payment thereof, together with such additional documentary evidence as any such Note Holder may reasonably request from time to time.

 

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If a Note Holder which is a Non-U.S. Person has furnished to the Mortgagee a properly completed, accurate and currently effective U.S. Internal Revenue Service Form W-8BEN (or such successor form or forms as may be required by the United States Treasury Department) during the calendar year in which the payment hereunder or under the Equipment Note(s) held by such holder is made (but prior to the making of such payment), or in either of the two preceding calendar years, and has not notified the Mortgagee of the withdrawal or inaccuracy of such form prior to the date of such payment (and the Mortgagee has no reason to believe that any information set forth in such form is inaccurate), the Mortgagee shall withhold only the amount, if any, required by Law (after taking into account any applicable exemptions properly claimed by the Note Holder) to be withheld from payments hereunder or under the Equipment Notes held by such holder in respect of United States federal income tax.  If a Note Holder (x) which is a Non-U.S. Person has furnished to the Mortgagee a properly completed, accurate and currently effective U.S. Internal Revenue Service Form W-8ECI in duplicate (or such successor certificate, form or forms as may be required by the United States Treasury Department as necessary in order to properly avoid withholding of United States federal income tax), for each calendar year in which a payment is made (but prior to the making of any payment for such year), and has not notified the Mortgagee of the withdrawal or inaccuracy of such certificate or form prior to the date of such payment (and the Mortgagee has no reason to believe that any information set forth in such form is inaccurate) or (y) which is a U.S. Person has furnished to the Mortgagee a properly completed, accurate and currently effective U.S. Internal Revenue Service Form W-9, if applicable, prior to a payment hereunder or under the Equipment Notes held by such holder, no amount shall be withheld from payments in respect of United States federal income tax.  If any Note Holder has notified the Mortgagee that any of the foregoing forms or certificates is withdrawn or inaccurate, or if such holder has not filed a form claiming an exemption from United States withholding tax or if the Code or the regulations thereunder or the administrative interpretation thereof is at any time after the date hereof amended to require such withholding of United States federal income taxes from payments under the Equipment Notes held by such holder, the Mortgagee agrees to withhold from each payment due to the relevant Note Holder withholding taxes at the appropriate rate under Law and will, on a timely basis as more fully provided above, deposit such amounts with an authorized depository and make such returns, statements, receipts and other documentary evidence in connection therewith as required by Law.

 

Owner shall not have any liability for the failure of the Mortgagee to withhold taxes in the manner provided for herein or for any false, inaccurate or untrue evidence provided by any Note Holder hereunder.

 

2.04        Application of Payments.  In the case of each Equipment Note, each payment of Original Amount, any Break Amount, if applicable, or any Prepayment Premium, if applicable, and interest due thereon shall be applied:

 

First:  to the payment of accrued interest on such Equipment Note (as well as any interest on any overdue Original Amount, any overdue Break Amount, if applicable, or any overdue Prepayment Premium, if applicable, and to the extent permitted by Law, any overdue interest and any other overdue amounts thereunder) to the date of such payment;

 

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Second:  to the payment of the Original Amount of such Equipment Note (or a portion thereof) then due thereunder;

 

Third:  to the payment of any Break Amount, if applicable, or any Prepayment Premium, if applicable, and any other amount due hereunder or under such Equipment Note; and

 

Fourth:  the balance, if any, remaining thereafter, to the payment of the Original Amount of such Equipment Note remaining unpaid (provided that such Equipment Note shall not be subject to redemption except as provided in Sections 2.09, 2.10 and 2.11 hereof).

 

The amounts paid pursuant to clause “Fourth” above shall be applied to the installments of Original Amount of such Equipment Note in the inverse order of their normal maturity.

 

2.05        Termination of Interest in Collateral.  (a) No Note Holder or any other Indenture Indemnitee shall, as such, have any further interest in, or other right with respect to, the Collateral when and if the Original Amount of, any Break Amount, if applicable, or any Prepayment Premium, if applicable, and interest on and other amounts due under all Equipment Notes held by such Note Holder and all other sums then due and payable to such Note Holder, such Indenture Indemnitee or the Mortgagee hereunder and under the other Operative Agreements by the Owner shall have been paid in full.

 

(b)           Upon satisfaction of the conditions described in Section 2.05(a), no Related Secured Party shall have any further interest in, or other right with respect to, the Collateral if (x) no Related Event of Default shall have occurred and be continuing under any Related Indenture or (y) all Related Secured Obligations that are due and payable to such Related Secured Party by the Owner pursuant to each Related Indenture shall have been paid and discharged in full.

 

2.06        Registration, Transfer and Exchange of Equipment Notes.  The Mortgagee shall keep a register (the “Equipment Note Register”) in which the Mortgagee shall provide for the registration of Equipment Notes and the registration of transfers of Equipment Notes.  No such transfer shall be given effect unless and until registration hereunder shall have occurred.  The Equipment Note Register shall be kept at the Corporate Trust Office of the Mortgagee.  The Mortgagee is hereby appointed “Equipment Note Registrar” for the purpose of registering Equipment Notes and transfers of Equipment Notes as herein provided.  A holder of any Equipment Note intending to exchange such Equipment Note shall surrender such Equipment Note to the Mortgagee at the Corporate Trust Office, together with a written request from the registered holder thereof for the issuance of a new Equipment Note, specifying, in the case of a surrender for transfer, the name and address of the new holder or holders.  Upon surrender for registration of transfer of any Equipment Note, the Owner shall execute, and the Mortgagee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Equipment Notes of a like aggregate Original Amount and of the same Series.  At the option of the Note Holder, Equipment Notes may be exchanged for other Equipment Notes of any authorized denominations of a like aggregate Original Amount and of the same Series, upon surrender of the Equipment Notes to be exchanged to the Mortgagee at the Corporate Trust

 

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Office.  Whenever any Equipment Notes are so surrendered for exchange, the Owner shall execute, and the Mortgagee shall authenticate and deliver, the Equipment Notes which the Note Holder making the exchange is entitled to receive.  All Equipment Notes issued upon any registration of transfer or exchange of Equipment Notes (whether under this Section 2.06 or under Section 2.07 hereof or otherwise under this Trust Indenture) shall be the valid obligations of the Owner evidencing the same respective obligations, and entitled to the same security and benefits under this Trust Indenture, as the Equipment Notes surrendered upon such registration of transfer or exchange.  Every Equipment Note presented or surrendered for registration of transfer, shall (if so required by the Mortgagee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Mortgagee duly executed by the Note Holder or such holder’s attorney duly authorized in writing, and the Mortgagee shall require evidence satisfactory to it as to the compliance of any such transfer with the Securities Act, and the securities Laws of any applicable state.  The Mortgagee shall make a notation on each new Equipment Note of the amount of all payments of Original Amount previously made on the old Equipment Note or Equipment Notes with respect to which such new Equipment Note is issued and the date to which interest on such old Equipment Note or Equipment Notes has been paid.  Interest shall be deemed to have been paid on such new Equipment Note to the date on which interest shall have been paid on such old Equipment Note, and all payments of the Original Amount marked on such new Equipment Note, as provided above, shall be deemed to have been made thereon.  The Owner shall not be required to exchange any surrendered Equipment Notes as provided above during the ten-day period preceding the due date of any payment on such Equipment Note.  The Owner shall in all cases deem the Person in whose name any Equipment Note shall have been issued and registered as the absolute owner and holder of such Equipment Note for the purpose of receiving payment of all amounts payable by the Owner with respect to such Equipment Note and for all purposes until a notice stating otherwise is received from the Mortgagee and such change is reflected on the Equipment Note Register.  The Mortgagee will promptly notify the Owner of each registration of a transfer of an Equipment Note.  Any such transferee of an Equipment Note, by its acceptance of an Equipment Note, agrees to the provisions of this Indenture and the Participation Agreement applicable to Note Holders, including Sections 5.3, 5.4 and 8.1 thereof and shall be deemed to have covenanted to the parties to the Participation Agreement as to the matters covenanted by the original Note Holder in the Participation Agreement.  Subject to compliance by the Note Holder and its transferee (if any) of the requirements set forth in this Section 2.06, Mortgagee and Owner shall use all reasonable efforts to issue new Equipment Notes upon transfer or exchange within ten Business Days of the date an Equipment Note is surrendered for transfer or exchange.

 

2.07        Mutilated, Destroyed, Lost or Stolen Equipment Notes.  If any Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner shall, upon the written request of the holder of such Equipment Note, execute and the Mortgagee shall authenticate and deliver in replacement thereof a new Equipment Note, payable in the same Original Amount dated the same date and captioned as issued in connection with the Aircraft.  If the Equipment Note being replaced has become mutilated, such Equipment Note shall be surrendered to the Mortgagee and a photocopy thereof shall be furnished to the Owner.  If the Equipment Note being replaced has been destroyed, lost or stolen, the holder of such Equipment Note shall furnish to the Owner and the Mortgagee such security or indemnity as may be required by them to save and hold the Owner and the Mortgagee harmless and evidence satisfactory to the Owner and the Mortgagee of the destruction, loss or theft of such Equipment Note and of the ownership thereof.  If a

 

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“qualified institutional buyer” of the type referred to in paragraph (a)(1)(i)(A), (B), (D) or (E) of Rule 144A under the Securities Act (a “QIB”) is the holder of any such destroyed, lost or stolen Equipment Note, then the written indemnity of such QIB, signed by an authorized officer thereof, in favor of, delivered to and in form reasonably satisfactory Owner shall be accepted as satisfactory indemnity and security and no further indemnity or security shall be required as a condition to the execution and delivery of such new Equipment Note.  Subject to compliance by the Note Holder with the requirements set forth in this Section 2.07, Mortgagee and Owner shall use all reasonable efforts to issue new Equipment Notes within ten Business Days of the date of the written request therefor from the Note Holder.

 

2.08        Payment of Expenses on Transfer; Cancellation.

 

(a)           No service charge shall be made to a Note Holder for any registration of transfer or exchange of Equipment Notes, but the Mortgagee, as Equipment Note Registrar, may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Equipment Notes.

 

(b)           The Mortgagee shall cancel all Equipment Notes surrendered for replacement, redemption, transfer, exchange, payment or cancellation and shall destroy the canceled Equipment Notes.

 

2.09        Mandatory Redemptions of Equipment Notes.  On the date on which the Owner is required pursuant to Section 4.05 hereof to make payment for an Event of Loss with respect to the Airframe, all of the Equipment Notes shall be redeemed in whole at a redemption price equal to 100% of the unpaid Original Amount thereof, together with all accrued interest thereon to the date of redemption and all other Secured Obligations owed or then due and payable to the Note Holders with Break Amount, if any, but without Prepayment Premium.

 

2.10        Voluntary Redemptions of Equipment Notes.  All (but not less than all) of the Equipment Notes may be redeemed by the Owner upon at least 30 days’ revocable prior written notice to the Mortgagee, and the Equipment Notes shall be redeemed in whole at a redemption price equal to 100% of the unpaid Original Amount thereof, together with accrued interest thereon to the date of redemption and all other Secured Obligations owed or then due and payable to the Note Holders plus Break Amount, if any, and Prepayment Premium, if any.

 

2.11        Redemptions; Notice of Redemption.

 

(a)           No redemption of any Equipment Note may be made except to the extent and in the manner expressly permitted by this Trust Indenture.  No purchase of any Equipment Note may be made by the Mortgagee.

 

(b)           Notice of redemption with respect to the Equipment Notes shall be given by the Mortgagee by first-class mail, postage prepaid, mailed not less than 25 nor more than 60 days prior to the applicable redemption date, to each Note Holder of such Equipment Notes to be redeemed, at such Note Holder’s address appearing in the Equipment Note Register; provided that, in the case of a redemption made pursuant to Section 2.10, such notice shall be revocable by written notice from the Owner to Mortgagee given not later than three days prior to the redemption date.  All notices of redemption shall state:  (1) the redemption date, (2)

 

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the applicable basis for determining the redemption price, (3) that on the redemption date, the redemption price will become due and payable upon each such Equipment Note, and that, if any such Equipment Notes are then outstanding, interest on such Equipment Notes shall cease to accrue on and after such redemption date, and (4) the place or places where such Equipment Notes are to be surrendered for payment of the redemption price.

 

(c)           On or before the redemption date, the Owner (or any person on behalf of the Owner) shall, to the extent an amount equal to the redemption price for the Equipment Notes to be redeemed on the redemption date shall not then be held by the Mortgagee, deposit or cause to be deposited with the Mortgagee by 12:30 p.m. New York City time on the redemption date in immediately available funds the redemption price of the Equipment Notes to be redeemed.

 

(d)           Notice of redemption having been given and not revoked as aforesaid, the Equipment Notes to be redeemed shall, on the redemption date, become due and payable at the Corporate Trust Office of the Mortgagee or at any office or agency maintained for such purposes pursuant to Section 2.06, and from and after such redemption date (unless there shall be a default in the payment of the redemption price) any such Equipment Notes then outstanding shall cease to bear interest.  Upon surrender of any such Equipment Note for redemption in accordance with said notice, such Equipment Note shall be redeemed at the redemption price.  If any Equipment Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal amount thereof shall, until paid, continue to bear interest from the applicable redemption date at the interest rate in effect for such Equipment Note as of such redemption date.

 

2.12        Subordination.

 

(a)           The Owner and, by acceptance of its Equipment Notes of any Series, each Note Holder of such Series, hereby agree that no payment or distribution shall be made on or in respect of the Secured Obligations owed to such Note Holder of such Series, including any payment or distribution of cash, property or securities after the commencement of a proceeding of the type referred to in Section 5.01(v), (vi) or (vii) hereof, except as expressly provided in Article III hereof.

 

(b)           By the acceptance of its Equipment Notes, each Note Holder agrees that in the event that such Note Holder, in its capacity as a Note Holder, shall receive any payment or distribution on any Secured Obligations in respect of the Series of Equipment Note held by such Note Holder which it is not entitled to receive under this Section 2.12 or Article III hereof, it will hold any amount so received in trust for the Note Holders entitled to such amount and will forthwith turn over such payment to the Mortgagee in the form received to be applied as provided in Article III hereof.

 

(c)           By the acceptance of its Equipment Notes, each Note Holder agrees that in the event that such Note Holder, in its capacity as a Note Holder, shall receive any payment or distribution pursuant to this Trust Indenture on any Related Secured Obligations, it will hold any amount so received in trust for the applicable Related Mortgagee and will forthwith turn over such payment to the Mortgagee or the applicable Related Mortgagee in the form received to be applied as provided in Article III of the applicable Related Indenture.

 

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(d)           The indebtedness evidenced by the Series G-1 Equipment Notes and the Series G-2 Equipment Notes shall rank in right of payment equally with all other Series G-1 Equipment Notes and Series G-2 Equipment Notes.  Principal payments on the Series G-1 Equipment Notes and Series G-2 Equipment Notes will be subordinate to payments of interest on the Series C Equipment Notes.  Payments of interest on the Series C Equipment Notes will be subordinate and subject in right of payment to the prior payment of interest on the Series G-1 Equipment Notes and Series G-2 Equipment Notes.  Principal payments on the Series C Equipment Notes will be subordinate and subject in right of payment to the prior payment in full of the Secured Obligations in respect of the Series G-1 Equipment Notes and the Series G-2 Equipment Notes.  By acceptance of its Equipment Notes of any Series, each Note Holder of such Series (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Mortgagee on such Note Holder’s behalf to take any action necessary or appropriate to effectuate the subordination as provided in this Trust Indenture and (c) appoints the Mortgagee as such Note Holder’s attorney-in-fact for such purpose.

 

ARTICLE III

 

RECEIPT, DISTRIBUTION AND APPLICATION OF PAYMENTS

 

3.01        Basic Distributions.  Except as otherwise provided in Section 3.03 hereof, each periodic payment of principal or interest on the Equipment Notes received by the Mortgagee shall be promptly distributed in the following order of priority:

 

(i)            so much of such payment as shall be required to pay in full the aggregate amount of the payment or payments of interest (as well as any interest on any overdue Original Amount and, to the extent permitted by Law, on any overdue interest) then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes shall be distributed to the Note Holders of Series G-1 Equipment Notes and Series G-2 Equipment Notes ratably, without priority of one over the other, in the proportion that the amount of such payment or payments then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by such Note Holder bears to the aggregate amount of interest payments then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes;

 

(ii)           after giving effect to paragraph (i) above, so much of such payment remaining as shall be required to pay in full the aggregate amount of the payment or payments of interest (as well as any interest on any overdue Original Amount and, to the extent permitted by Law, on any overdue interest) then due under all Series C Equipment Notes shall be distributed to the Note Holders of Series C ratably, without priority of one over the other, in the proportion that the amount of such payment or payments then due under all Series C Equipment Notes held by such Note Holder bears to the aggregate amount of interest payments then due under all Series C Equipment Notes;

 

(iii)          after giving effect to paragraphs (i) and (ii) above, so much of such payment as shall be required to pay in full the aggregate amount of the payment or payments of Original Amount then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes shall be distributed to the Note Holders of Series G-1

 

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Equipment Notes and Series G-2 Equipment Notes ratably, without priority of one over the other, in the proportion that the amount of such payment or payments then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by such Note Holder bears to the aggregate amount of such payments then due under all Series G-1 Equipment Notes and Series G-2 Equipment Notes; and

 

(iv)          after giving effect to paragraphs (i), (ii) and (iii) above, so much of such payment remaining as shall be required to pay in full the aggregate amount of the payment or payments of Original Amount then due under all Series C Equipment Notes shall be distributed to the Note Holders of Series C ratably, without priority of one over the other, in the proportion that the amount of such payment or payments then due under all Series C Equipment Notes held by such Note Holder bears to the aggregate amount of such payments then due under all Series C Equipment Notes.

 

3.02        Event of Loss; Replacement; Optional Redemption.  Except as otherwise provided in Section 3.03 hereof, any payments received by the Mortgagee (i) pursuant to Section 2.09 hereof with respect to the Airframe as the result of an Event of Loss or (ii) pursuant to an optional redemption of the Equipment Notes pursuant to Section 2.10 hereof shall be applied to redemption of the Equipment Notes and to all other Secured Obligations and Related Secured Obligations by applying such funds in the following order of priority:

 

First, (a) to reimburse the Mortgagee and the Note Holders for any reasonable costs or expenses incurred in connection with such redemption for which they are entitled to reimbursement, or indemnity by Owner, under the Operative Agreements and then (b) to pay any other amounts then due (except as provided in clause “Second” below) to the Mortgagee, the Note Holders and the other Indenture Indemnitees under this Trust Indenture (other than the amounts specified in clause “Second” below), the Participation Agreement or the Equipment Notes;

 

Second, to pay the amounts specified in clause ”Third” of Section 3.03 hereof in the order of payment set forth therein (including in the case of a redemption pursuant to Section 2.10 hereof, Prepayment Premium, if any);

 

Third, as provided in clause ”Fourth” of Section 3.03 hereof; and

 

Fourth, as provided in clause ”Sixth” of Section 3.03 hereof.

 

3.03        Payments After Acceleration.  Except as otherwise provided in Section 3.04 hereof, all payments received and amounts held or realized by the Mortgagee (including any amounts realized by the Mortgagee from the exercise of any remedies pursuant to Article V hereof) after an Event of Default shall have occurred and be continuing and after the acceleration of maturity specified in Section 5.02(b) hereof, as well as all payments or amounts then held by the Mortgagee as part of the Collateral, shall be promptly distributed by the Mortgagee in the following order of priority:

 

First, so much of such payments or amounts as shall be required to (i) reimburse the Mortgagee or WTC for any tax (other than any Unindemnified

 

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Tax and except to the extent resulting from a failure of the Mortgagee to withhold taxes pursuant to Section 2.03(b) hereof), expense or other loss (including, without limitation, all amounts to be expended at the expense of, or charged upon the rents, revenues, issues, products and profits of, the property included in the Collateral (all such property being herein called the “Mortgaged Property”) pursuant to Section 5.03(b) hereof) incurred by the Mortgagee or WTC (to the extent not previously reimbursed), the expenses of any sale, or other proceeding, reasonable attorneys’ fees and expenses, court costs, and any other expenditures incurred or expenditures or advances made by the Mortgagee, WTC or the Note Holders in the protection, exercise or enforcement of any right, power or remedy or any damages sustained by the Mortgagee, WTC or any Note Holder, liquidated or otherwise, upon such Event of Default shall be applied by the Mortgagee as between itself, WTC and the Note Holders in reimbursement of such expenses and any other expenses for which the Mortgagee, WTC or the Note Holders are entitled to reimbursement under any Operative Agreement and (ii) all amounts payable to the other Indenture Indemnitees hereunder (other than the amounts specified in clauses Second and Third below) and under the Participation Agreement; and in the case the aggregate amount to be so distributed is insufficient to pay as aforesaid in clauses (i) and (ii), then ratably, without priority of one over the other, in proportion to the amounts owed each hereunder;

 

Second, so much of such payments or amounts remaining as shall be required to reimburse the then existing or prior Note Holders for payments made pursuant to Section 6.03 hereof (to the extent not previously reimbursed) shall be distributed to such then existing or prior Note Holders ratably, without priority of one over the other, in accordance with the amount of the payment or payments made by each such then existing or prior Note Holder pursuant to said Section 6.03 hereof;

 

Third, (i) so much of such payments or amounts remaining as shall be required to pay in full the accrued but unpaid interest on all Series G-1 Equipment Notes and Series G-2 Equipment Notes to the date of distribution, shall be distributed to the Note Holders of the Series G-1 Equipment Notes and Series G-2 Equipment Notes, and in case the aggregate amount to be so distributed shall be insufficient to pay in full as aforesaid, then ratably, without priority of one over the other, in the proportion that the aggregate unpaid interest on all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by each Note Holder to the date of distribution, bears to the aggregate unpaid interest on all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by all such Note Holders to the date of distribution; (ii) after giving effect to clause (i) above, so much of such payments or amounts remaining as shall be required to pay in full the accrued but unpaid interest on the Series C Equipment Notes to the date of distribution, shall be distributed to the Note Holders of Series C, and in case the aggregate amount to be so distributed shall be insufficient to pay in full as aforesaid, then ratably, without priority of one over the other, in the proportion that the aggregate unpaid interest on

 

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all Series C Equipment Notes held by each Note Holder to the date of distribution, bears to the aggregate unpaid interest on all Series C Equipment Notes held by all such Note Holders to the date of distribution, (iii) after giving effect to clauses (i) and (ii) above, so much of such payments or amounts remaining as shall be required to pay in full the aggregate unpaid Original Amount of all Series G-1 Equipment Notes and Series G-2 Equipment Notes and all other Secured Obligations in respect of the Series G-1 Equipment Notes and Series G-2 Equipment Notes (including without limitation, Break Amount, if any, but without any Prepayment Premium) to the date of distribution, shall be distributed to the Note Holders of the Series G-1 Equipment Notes and Series G-2 Equipment Notes, and in case the aggregate amount so to be distributed shall be insufficient to pay in full as aforesaid, then ratably, without priority of one over the other, in the proportion that the aggregate unpaid Original Amount of all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by each Note Holder plus all other amounts due hereunder or thereunder (including without limitation, Break Amount, if any, but without any Prepayment Premium) with respect to such Series G-1 Equipment Notes and Series G-2 Equipment Notes to the date of distribution, bears to the aggregate unpaid Original Amount of all Series G-1 Equipment Notes and Series G-2 Equipment Notes held by all such Note Holders plus all other amounts due hereunder or thereunder thereon (including without limitation, Break Amount, if any, but without any Prepayment Premium) to the date of distribution; (iv) after giving effect to clauses (i), (ii) and (iii) above, so much of such payments or amounts remaining as shall be required to pay in full the aggregate unpaid Original Amount of all Series C Equipment Notes and all other Secured Obligations in respect of the Series C Equipment Notes (including, without limitation, Break Amount, if any, but without any Prepayment Premium) to the date of distribution, shall be distributed to the Note Holders of Series C Equipment Notes, and in case the aggregate amount so to be distributed shall be insufficient to pay in full as aforesaid, then ratably, without priority of one over the other, in the proportion that the aggregate unpaid Original Amount of all Series C Equipment Notes held by each Note Holder plus all other amounts due hereunder or thereunder (including, without limitation, Break Amount, if any, but without any Prepayment Premium) with respect to such Series C Equipment Note to the date of distribution, bears to the aggregate unpaid Original Amount of all Series C Equipment Notes held by all such Note Holders plus all other amounts due thereon (including, without limitation, Break Amount, if any, but without any Prepayment Premium) to the date of distribution;

 

Fourth, so long as a Related Event of Default shall have occurred and be continuing under any Related Indenture, so much of such payments or amounts remaining as shall be required to pay in full the Related Secured Obligations due and payable under such Related Indentures, shall be distributed to the Related Mortgagees with respect to such Related Indentures to be applied in accordance with Section 3.03 of such Related Indentures, and in the case the aggregate amount so to be distributed shall be insufficient to pay in full as aforesaid, then ratably to each such Related Mortgagee, without priority of one over the other, in the proportion that the aggregate unpaid Related Secured Obligations payable to a

 

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Related Mortgagee bears to the aggregate unpaid Related Secured Obligations payable to all such Related Mortgagees;

 

Fifth, so long as the aggregate Pool Balance (as defined in the Intercreditor Agreement) of the Class G-1 Certificates and Class G-2 Certificates (each as defined in the Intercreditor Agreement) (after giving effect to the reduction in such Pool Balance, if any, that will result from the distribution of amounts allocable under clauses “first”, “second”, “third” and “fourth” above by the Subordination Agent under the Intercreditor Agreement on the applicable Distribution Date (as defined in the Intercreditor Agreement)) exceeds the aggregate outstanding principal amount of all remaining Series G-1 Equipment Notes and Series G-2 Equipment Notes (as defined in the Note Purchase Agreement) (after payments under clause “third” above shall reduced the principal amount of the Series G-1 Equipment Note and Series G-2 Equipment Note to zero and, if applicable, after application of amounts under clause ”Fourth” above shall have reduced the outstanding principal amount of the Series G-1 Equipment Notes and Series G-2 Equipment Notes under (and as defined in) any Related Indenture) shall be retained by the Mortgagee to be applied to amounts not paid when due under any Related Indenture; and

 

Sixth, the balance, if any, of such payments or amounts remaining thereafter shall be distributed to the Owner.

 

No Prepayment Premium shall be due and payable on the Equipment Notes as a consequence of the acceleration of the Equipment Notes as a result of an Event of Default.

 

3.04        Certain Payments.

 

(a)           Any payments received by the Mortgagee for which no provision as to the application thereof is made in this Trust Indenture and for which such provision is made in any other Operative Agreement shall be applied forthwith to the purpose for which such payment was made in accordance with the terms of such other Operative Agreement, as the case may be.

 

(b)           Notwithstanding anything to the contrary contained in this Article III, the Mortgagee will distribute promptly upon receipt any indemnity payment received by it from the Owner in respect of the Mortgagee in its individual capacity, any Note Holder or any other Indenture Indemnitee, in each case whether pursuant to Section 7 of the Participation Agreement, directly to the Person entitled thereto.  Any payment received by the Mortgagee under the third paragraph of Section 2.02 shall be distributed to the Subordination Agent to be distributed in accordance with the terms of the Intercreditor Agreement.

 

3.05        Other Payments.  Any payments received by the Mortgagee for which no provision as to the application thereof is made elsewhere in this Trust Indenture or in any other Operative Agreement shall be distributed by the Mortgagee to the extent received or realized at any time, in the order of priority specified in Section 3.01 hereof, and after payment in full of all amounts then due in accordance with Section 3.01 in the manner provided in clause “Fourth” of Section 3.03 hereof.

 

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3.06        Payments to the Owner.  Any amounts distributed hereunder by the Mortgagee to the Owner shall be paid to the Owner (within the time limits contemplated by Section 2.03) by wire transfer of funds of the type received by the Mortgagee at such office and to such account or accounts of such entity or entities as shall be designated by notice from the Owner to the Mortgagee from time to time.

 

3.07        Cooperation.  Prior to making any distribution under Section 3.02 or 3.03 hereof, the Mortgagee shall consult with the Related Mortgagees to determine amounts payable with respect to the Related Secured Obligations.   The Mortgagee shall cooperate with the Related Mortgagees and shall provide such information as shall be reasonably requested by each Related Mortgagee to enable such Related Mortgagee to determine amounts distributable under Sections 3.02 and 3.03 of its Related Indenture.

 

ARTICLE IV

 

COVENANTS OF THE OWNER

 

4.01        Liens.  The Owner will not directly or indirectly create, incur, assume or suffer to exist any Lien on or with respect to the Aircraft, the Airframe or any Engine or any Part, title to any of the foregoing or any interest of Owner therein, except Permitted Liens.  The Owner shall promptly, at its own expense, take (or cause to be taken) such action as may be necessary to duly discharge (by bonding or otherwise) any Lien other than a Permitted Lien arising at any time in respect of the Aircraft, the Airframe, any Engine or any Part.

 

4.02        Possession, Operation and Use, Registration and Markings.

 

(a)           General.  Except as otherwise expressly provided herein, the Owner shall be entitled to operate, use, locate, employ or otherwise utilize or not utilize the Airframe, any Engine or any Parts in any lawful manner or place in accordance with the Owner’s business judgment.

 

(b)           Possession.  The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided, that so long as such action shall not deprive the Mortgagee of the perfected Lien of this Agreement on the Airframe or any Engine, the Owner may, without such prior written consent of Mortgagee:

 

(i)            Subject or permit any Permitted Lessee to subject any Engine to normal interchange agreements or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; provided, however, that if Owner’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;

 

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(ii)           Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by the terms hereof, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);

 

(iii)          Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i), provided that the Owner’s title to such Engine and the first priority Lien of this Trust Indenture shall not be divested or impaired as a result thereof;

 

(iv)          Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;

 

(v)           Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; provided, however, that any such installation shall be deemed an Event of Loss with respect to such Engine and Owner shall comply with Section 4.04(e) hereof in respect thereof; the Mortgagee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Owner with such Section 4.04(e);

 

(vi)          Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner, or such Permitted Lessee, shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to

 

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whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;

 

(vii)         To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe or any Engine to any pooling arrangement referred to in Section 4.04(c) hereof;

 

(viii)        Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); provided that the Owner’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;

 

(ix)           Subject to the provisions of the immediately following paragraph and so long as no Event of Default shall have occurred and be continuing, enter into a lease with respect to the Aircraft, Airframe or any Engine with any Permitted Air Carrier that is not the subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; provided that, in the case only of a lease to a Permitted Air Carrier which is not a U.S. person, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Air Carrier, that (u) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction (subject to customary exceptions), (v) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (w) Mortgagee’s Lien in respect of the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (x) there exist no possessory rights in favor of the Lessee under such lease under the laws of such Lessee’s country of domicile that would, upon bankruptcy or insolvency of the Owner or other Event of Default and assuming at such time such Lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Trust Indenture, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law (subject to customary exceptions);

 

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provided that (1) the rights of any Permitted Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect, (3) the Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required pursuant to Section 4.06 remains in effect and (4) Owner shall ensure that no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall permit any action not permitted to the Owner hereunder.  Any lease permitted by this Section 4.02(b) shall expressly prohibit any further sublease by the lessee.  Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner.  The Owner shall promptly, but not later than 10 Business Days after entering into such lease, notify the Mortgagee and the Rating Agencies of the existence of such lease with a term in excess of one year and provide a copy of such lease to the Mortgagee and the Rating Agencies.

 

No pooling agreement, Permitted Lease or other relinquishment of possession of the Airframe or any Engine shall in any way discharge or diminish any of Owner’s obligations to the Mortgagee under this Trust Indenture or constitute a waiver of Mortgagee’s rights or remedies hereunder.

 

The Mortgagee agrees, and each Note Holder by acceptance of an Equipment Note agrees, and each Related Note Holder by acceptance of a Related Equipment Note agrees, for the benefit of Owner (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by Owner (or any Permitted Lessee), any lessor of any engine (other than an Engine) leased to Owner (or any Permitted Lessee) and any conditional vendor of any engine (other than an Engine) purchased by Owner (or any Permitted Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created under this Trust Indenture in any engine so owned, leased or purchased and that neither the Mortgagee, the Note Holders, the Related Note Holders nor their successors or assigns will acquire or claim, as against Owner (or any Permitted Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such engine being installed on the Airframe; provided, however, that such agreement of the Mortgagee and Note Holders shall not be for the benefit of any lessor or secured party of an airframe leased to Owner (or any Permitted Lessee) or purchased by Owner (or any Permitted Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee or any other holder of a security interest in an airframe owned by Owner (or any Permitted Lessee), on which airframe Owner (or any Permitted Lessee) then proposes to install an Engine, unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as

 

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against Mortgagee, any right, title or interest in an Engine as a result of such Engine being installed on such airframe.

 

Any Wet Lease or similar arrangement under which Owner maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 4.02.  The Mortgagee acknowledges that any consolidation or merger of Owner or conveyance, transfer or lease of all or substantially all of Owner’s assets permitted by the Operative Documents shall not be prohibited by this Section 4.02.

 

(c)           Operation and Use.  So long as the Aircraft, Airframe or any Engine is subject to the Lien of this Trust Indenture, the Owner shall not operate, use or locate the Aircraft, Airframe or any Engine, or allow the Aircraft, Airframe or any Engine to be operated, used or located, (i) in any area excluded from coverage by any insurance required by the terms of Section 4.06, except in the case of a requisition by the U.S. Government where the Owner obtains indemnity in lieu of such insurance from the U.S. Government covering such area in accordance with Section 4.06(c), or (ii) in any recognized area of hostilities unless covered in accordance with Annex B by war risk and allied perils hull insurance as required by the terms of Section 4.06 (including, without limitation, Section 4.06(c)), unless in such case the Aircraft, the Airframe or any Engine is only temporarily operated, used or located in such area as a result of an emergency, equipment malfunction, navigational error, hijacking, weather condition or other similar unforeseen circumstance, so long as Owner diligently and in good faith proceeds to remove the Aircraft from such area.  The Owner shall also have the right to operate the Aircraft without having on board the original registration certificate or airworthiness certificate in the event that either or both such certificates disappear from the Aircraft, but only to the extent permitted by Exemption No. 5318 of the FAA Regulations or other similar exemption.  So long as the Aircraft, the Airframe or any Engine is subject to the Lien of this Trust Indenture, the Owner shall not permit such Aircraft, Airframe or any Engine, as the case may be, to be used, operated, maintained, serviced, repaired or overhauled (x) in violation of any Law of any Government Entity having jurisdiction binding on or applicable to such Aircraft, Airframe or Engine or (y) in violation of any airworthiness certificate, license or registration of any such Government Entity relating to the Aircraft, the Airframe or any Engine, except (i) immaterial or non-recurring violations with respect to which corrective measures are taken promptly by Owner or Permitted Lessee, as the case may be, upon discovery thereof, (ii) to the extent the validity or application of any such Law or requirement relating to any such certificate, license or registration is being contested in good faith by Owner or Permitted Lessee in any reasonable manner which does not materially adversely affect the Lien of this Trust Indenture and does not involve any material risk of sale, forfeiture or loss of the Aircraft, or (iii) that Owner shall not be in default under, or required to take any action set forth in this sentence if it is not possible for Owner to comply with the laws of a jurisdiction other than the United States (or other jurisdiction in which the Aircraft is registered) because of a conflict with the applicable laws of the United States (or such other jurisdiction where the Aircraft is registered).

 

(d)           Registration.  The Owner, on or prior to the date of the Closing, shall cause the Aircraft to be duly registered with the FAA in its name under the Act and except as otherwise permitted by this Section 4.02(d) at all times thereafter shall cause the Aircraft to remain so registered.  So long as no Special Default or Event of Default shall have occurred and be continuing and subject to Section 5.4.5 of the Participation Agreement, Owner may at any

 

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time cause the Aircraft to be re-registered under the laws of a country other than the United States.  Whether or not a Special Default or an Event of Default shall be continuing, subject to Section 5.4.5 of the Participation Agreement, Owner may at any time cause the Aircraft to be re-registered under the laws of the United States.  Unless the Trust Indenture has been discharged, Owner shall also cause the Trust Indenture to be duly recorded and at all times maintained of record as a first-priority perfected mortgage (subject to Permitted Liens) on the Aircraft, the Airframe and each of the Engines (except to the extent (i) such perfection or priority cannot be maintained solely as a result of the failure by Mortgagee to execute and deliver any necessary documents or (ii) in the case of a registration of the Aircraft in a country other than the United States, the Trust Indenture need not be so recorded as provided in Section 5.4.5(d) of the Participation Agreement).

 

(e)           Markings.  If permitted by applicable Law, on or as soon as practicable after the Closing Date, Owner will cause to be affixed to, and maintained in, the cockpit of the Airframe and on each Engine, in each case, in a clearly visible location, a placard of a reasonable size and shape bearing the legend:  “Subject to a security interest in favor of Wilmington Trust Company, not in its individual capacity but solely as Mortgagee.”  Such placards may be removed temporarily, if necessary, in the course of maintenance of the Airframe or Engines.  If any such placard is damaged or becomes illegible, Owner shall promptly replace it with a placard complying with the requirements of this Section 4.02(e).  Except as above provided, Owner will not allow the name of any person (other than Owner) to be placed on the Airframe or on any Engine as a designation that might be interpreted as a claim of ownership, provided that nothing herein shall prohibit Owner or any Permitted Lessee from placing its customary colors and insignia on the Airframe and any Engine.

 

4.03        Inspection.

 

(a)           At all reasonable times and upon reasonable advance notice (taking into consideration the availability of the Aircraft and Owner (or Permitted Lessee) personnel), so long as the Aircraft is subject to the Lien of this Trust Indenture, Mortgagee and its authorized representatives (including the Policy Provider) (the “Inspecting Parties”) may (not more than once every 12 months unless an Event of Default has occurred and is continuing in which case such inspection right shall not be so limited) inspect the Aircraft, Airframe and Engines (including without limitation, the Aircraft Documents) and any such Inspecting Party may make copies of such Aircraft Documents not reasonably deemed confidential by Owner or such Permitted Lessee.

 

(b)           Any inspection of the Aircraft hereunder shall be subject to Owner’s safety and security rules applicable at the location of the Aircraft and shall be limited to a visual, walk-around inspection and shall not include the opening of any panels, bays or other components of the Aircraft without the express consent of the Owner (such consent not to be given by the Mortgagee pursuant to the power of attorney granted herein), and no such inspection shall interfere with Owner’s or any Permitted Lessee’s maintenance and operation of the Aircraft, Airframe and Engines.

 

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(c)           With respect to such rights of inspection, neither Mortgagee nor the Policy Provider shall have any duty or liability to make, or any duty or liability by reason of not making, any such visit, inspection or survey.

 

(d)           Each Inspecting Party shall bear its own expenses in connection with any such inspection (including the cost of any copies made in accordance with Section 4.03(a)).

 

Each Inspecting Party shall keep any information or copies obtained thereby confidential and shall not disclose the same to any Person, except (A) to the Pass Through Trustees and to prospective and permitted transferees of any Pass Through Trustee’s or the Mortgagee’s interest (and such prospective and permitted transferee’s counsel, independent insurance advisors or other agents) who agree to hold such information confidential, (B) to any Pass Through Trustee’s or the Mortgagee’s counsel, independent insurance advisors or other agents who agree to hold such information confidential, (C) as may be required by any statute, court or administrative order or decree or governmental ruling or regulation, (D) any other Inspecting Party, so long as such Inspecting Party agrees to hold such information confidential, and (E) as may be necessary for purposes of protecting the interest of any such Person or for enforcement of this Trust Indenture by the Mortgagee; provided, however, that any and all disclosures permitted by clauses (C) and (D) above shall be made only to the extent necessary to meet the specific requirements or needs of Persons for whom such disclosures are hereby permitted.

 

4.04        Maintenance; Replacement and Pooling of Parts, Alterations, Modifications and Additions; Substitution of Engines.

 

(a)           Maintenance.  Owner shall, at its own cost and expense, (1) maintain, service, repair, and overhaul (or cause to be maintained, serviced, repaired, and overhauled) the Aircraft (and any engine which is not an Engine but which is installed on the Aircraft) (A) so as to keep the Aircraft in as good an operating condition as when delivered to the Owner (ordinary wear and tear excepted and without taking into consideration hours and cycles) and so as to keep the Aircraft in such condition as may be necessary to enable the airworthiness certification for the Aircraft to be maintained in good standing at all times under the Act (or under the applicable requirements of another Aviation Authority in the jurisdiction in which the Aircraft is registered) except (i) when the Aircraft is being temporarily stored, (ii) when the Aircraft is being serviced, repaired, maintained, overhauled, tested or modified as permitted or required by the terms of this Trust Indenture, (iii) when all Similar Aircraft have been grounded by the FAA or under the applicable laws of any other jurisdiction in which the Aircraft is registered, or such authority has revoked or suspended the airworthiness certificates for such aircraft, or (iv) (x) for immaterial or non-recurring violations with respect to which corrective measures are taken promptly by Owner or Permitted Lessee, as the case may be, upon discovery thereof, or (y) to the extent the validity or application of any such Law or requirement relating to any such certificate, license or registration is being contested in good faith by Owner or Permitted Lessee in any reasonable manner which does not materially adversely affect the Lien of this Trust Indenture and does not involve any material risk of sale, forfeiture or loss of the Aircraft, and (B) in accordance with the Maintenance Program for the Aircraft and utilizing the same or better manner of maintenance used by the Owner (or any Permitted Lessee) with respect to similar aircraft operated by it, and (2) maintain or cause to be maintained in English all records, logs and other materials required to be maintained in respect of the Aircraft by the FAA or the applicable Aviation Authority.  In any

 

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case, the Aircraft will be maintained in accordance with the maintenance standards required by or substantially similar to those required by the FAA or the central aviation authority of Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland or the United Kingdom.  Determination of the appropriate course of action in maintenance, including the means of compliance with airworthiness directives, and all other matters pertaining to the Aircraft will be within the sole discretion of the Owner.

 

(b)           Replacement of Parts.  The Owner, at its own cost and expense, will promptly replace or cause to be replaced all Parts which may from time to time become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use for any reason whatsoever, except as otherwise provided in Sections 4.04(c) and 4.04(d).  In addition, the Owner may, at its own cost and expense, and may permit a Permitted Lessee, at its own cost and expense, (or any maintenance provider for the Aircraft) to, remove (or cause to be removed) in the ordinary course of maintenance, services, repair, overhaul or testing, any Parts, whether or not worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use; provided that the Owner, except as otherwise provided herein, will, at its own cost and expense, replace, or cause to be replaced, such Parts as promptly practicable.  All replacement parts (other than replacement parts temporarily installed as provided in Section 4.04(c) hereof) shall be free and clear of all Liens (except Permitted Liens), and shall be in as good an operating condition as, and shall have a value and utility substantially equal to, the Parts replaced, assuming such replaced Parts were in the condition and repair required to be maintained by the terms hereof (but without taking into consideration hours and cycles remaining until overhaul).  Except as provided in Section 4.04(d), all Parts at any time removed from the Airframe or any Engine shall remain subject to the Lien of this Trust Indenture, no matter where located, until such time as such Parts shall be replaced by parts which meet the requirements for replacement parts specified above.  Upon any replacement part becoming incorporated or installed in or attached to the Airframe or any Engine, without further act (subject only to Permitted Liens and any arrangement permitted by Section 4.04(c) hereof), (i) such replacement part shall become subject to the Lien of this Trust Indenture and be deemed a Part for all purposes hereof to the same extent as the Parts originally incorporated or installed in or attached to the Airframe or such Engine and (ii) the replaced Part shall no longer be subject to the Lien of this Trust Indenture and shall no longer be deemed a Part hereunder.  Upon request of Owner, the Mortgagee shall, at Owner’s expense, execute and deliver to Owner such documents as may be reasonably required to evidence the release of any replaced Part from the Lien of this Trust Indenture.

 

(c)           Pooling of Parts; Temporary Replacement Parts.  Any Part removed from the Airframe or any Engine as provided in Section 4.04(b) hereof may be subjected by the Owner (or any Permitted Lessee) to a pooling arrangement of the type which is permitted for Engines by Section 4.02(b)(i); provided that the part replacing such removed Part shall be incorporated or installed in or attached to such Airframe or Engine in accordance with Section 4.04(b) hereof as promptly as practicable after the removal of such removed Part.  In addition, the Owner (or any Permitted Lessee) may use temporary parts or pooled parts on the Aircraft that are owned by a third party subject to a pooling arrangement as temporary replacements for Parts, provided that the Owner (or any Permitted Lessee) as promptly thereafter as practicable, either (1) causes such pooled or temporary replacement part to become subject to

 

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the Lien of this Trust Indenture free and clear of all Liens other than Permitted Liens or (2) replaces such replacement part with a further replacement part owned by the Owner (or any Permitted Lessee) which meets the requirements of Section 4.04(b) hereof and which shall become subject to the Lien of this Trust Indenture, free and clear of all Liens other than Permitted Liens.

 

(d)           Alterations, Modifications and Additions.  The Owner shall, at its own cost and expense, make (or cause to be made) such alterations, modifications and additions to the Airframe and Engines as may be required from time to time to meet the applicable standards of the FAA or any other Aviation Authority, except for (i) immaterial or non-recurring violations with respect to which corrective measures are taken promptly by Owner or a Permitted Lessee, as the case may be, upon discovery thereof, or (ii) to the extent the validity or application of any such Law or requirement is being contested in good faith by Owner or a Permitted Lessee in any reasonable manner which does not involve any material risk of sale, loss or forfeiture of the Aircraft and does not materially adversely affect the Lien of this Trust Indenture.  In addition, Owner may from time to time alter the passenger (seating) configuration of the Aircraft and may make such alterations and modifications in and additions to the Airframe or any Engine as the Owner (or any Permitted Lessee) may deem desirable in the proper conduct of its business, including removal of Parts which the Owner (or any Permitted Lessee) deems to be obsolete or no longer suitable or appropriate for use on the Airframe or such Engine; provided that no such alteration, modification, removal or addition impairs the condition or airworthiness of the Airframe or such Engine, or materially diminishes the value, utility and, in regard to the Airframe, remaining useful life (without regard to hours and cycles) of the Airframe or such Engine below the value, utility or remaining useful life (without regard to hours and cycles) thereof immediately prior to such alteration, modification, removal or addition, assuming that the Airframe or such Engine is in the condition required hereunder.  All parts incorporated or installed in or attached or added to the Airframe or an Engine as the result of such alteration, modification or addition (except those parts which are excluded from the definition of Parts or which the Owner has leased from others and Parts which may be removed by the Owner pursuant to the next sentence) (the “Additional Part” or “Additional Parts”) shall, without further act, become subject to the Lien of this Trust Indenture.  Notwithstanding the foregoing, Owner may remove (and not replace) any Additional Part, provided that such Additional Part (i) is in addition to, and not in replacement of or substitution for, any Part originally incorporated or installed in or attached to the Airframe or any Engine at the time of delivery thereof hereunder or any Part in replacement of or substitution for any such Part, (ii) is not required to be incorporated or installed in or attached or added to the Airframe or any Engine pursuant to the terms of Section 4.04(a) or the first sentence of this Section 4.04(d), and (iii) can be removed from the Airframe or such Engine without impairing the airworthiness of the Airframe or such Engine or materially diminishing the value, utility and remaining useful life of the Airframe or such Engine which the Airframe or such Engine would have had at such time had such alteration, modification or addition not occurred.  Upon the removal thereof as provided above, such Additional Parts shall no longer be subject to the Lien of this Trust Indenture or be deemed part of the Airframe or Engine from which it was removed.  Notwithstanding any other provision of this Indenture, Owner may, at any time, install or permit to be installed in the Aircraft Passenger Convenience Equipment owned by Owner or any Permitted Lessee or by third parties and leased or otherwise furnished to Owner in the ordinary course of business, and Owner may remove (and not replace) or permit to be removed (and not replaced) the same, and Mortgagee shall not

 

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acquire a Lien thereon by virtue of such installation or otherwise, and the rights of the owners therein shall not constitute a default under this Trust Indenture.

 

(e)           Substitution of Engines.  Upon the occurrence of an Event of Loss with respect to an Engine under circumstances in which an Event of Loss with respect to the Airframe has not occurred, Owner shall promptly (and in any event within 15 days after such occurrence) give the Mortgagee written notice of such Event of Loss.  The Owner shall have the right at its option at any time while a Default or Event of Default shall not have occurred and be continuing (or otherwise with the written consent of the Mortgagee), on at least ten Business Days’ prior notice to the Mortgagee, to substitute, and if an Event of Loss shall have occurred with respect to an Engine under circumstances in which an Event of Loss with respect to the Airframe has not occurred, shall within 90 days of the occurrence of such Event of Loss substitute, a Replacement Engine for any Engine.  In such event, immediately upon the effectiveness of such substitution and without further act, (i) the replaced Engine shall thereupon be free and clear of all rights of the Mortgagee and the Lien of this Trust Indenture and shall no longer be deemed an Engine hereunder and (ii) such Replacement Engine shall become subject to this Trust Indenture free and clear of all Liens (other than Permitted Liens) and be deemed an “Engine” for all purposes hereof to the same extent as the replaced Engine.  Such Replacement Engine shall be an engine manufactured by Engine Manufacturer that is the same model as the Engine to be replaced thereby, or an improved model of such engine of the manufacturer thereof, and that has a value and utility (without regard to hours and cycles remaining until the next regular maintenance check) at least equal to, and be in as good operating condition and repair as,  the Engine to be replaced thereby (assuming that such Engine had been maintained in accordance with this Trust Indenture).  The Owner’s substitution hereunder shall be subject to the fulfillment (which may be simultaneous with such replacement) of the following conditions precedent at the Owner’s sole cost and expense, and the Mortgagee agrees to cooperate with the Owner to the extent necessary to enable it to timely satisfy such conditions:

 

the following documents shall have been duly authorized, executed and delivered (and filed, if applicable) by the respective party or parties thereto, and an executed counterpart of each shall have been delivered to the Mortgagee:

 

(A)          a Trust Indenture Supplement covering the Replacement Engine, which shall have been duly filed for recordation pursuant to the Act or such other applicable law of the jurisdiction other than the United States in which the Aircraft of which such Replacement Engine is a part is registered in accordance with Section 4.02(d), as the case may be;

 

(B)           a full warranty (as to title) bill of sale covering the Replacement Engine, executed by the former owner thereof in favor of the Owner (or, at the Owner’s option, other evidence of the Owner’s ownership of such Replacement Engine, reasonably satisfactory to the Mortgagee);

 

(C)           appropriate instruments assigning to the Mortgagee the benefits, if any, of all manufacturer’s and vendor’s warranties generally available and permitted to be assigned by the Owner with respect to such Replacement Engine;

 

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(D)          Uniform Commercial Code financing statements (or any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which the Aircraft of which such Replacement Engine is a part may be registered) as are deemed necessary by counsel for the Mortgagee to protect the security interests of the Mortgagee in the Replacement Engine;

 

(E)           a certificate signed by a duly authorized officer of the Owner or by a qualified aircraft engineer or appraiser reasonably acceptable to the Mortgagee certifying that such Replacement Engine is of the same as or improved model of the replaced Engine and has a value and utility (without regard to hours and cycles) at least equal to the Engine so replaced assuming such Engine was in the condition and repair required by the terms hereof immediately prior to the occurrence of such Event of Loss;

 

(F)           such evidence of compliance with the insurance provisions of Section 4.06 with respect to such Replacement Engine as the Mortgagee may reasonably request; and

 

(G)           an opinion of in-house counsel to the Owner or other counsel satisfactory to the Mortgagee, addressed to the Mortgagee, stating that the Replacement Engine has been validly subjected to the Lien of this Trust Indenture, the instruments subjecting such Replacement Engine to the Lien of this Trust Indenture have been duly filed for recordation pursuant to the Act or any other law then applicable to the registration of the Aircraft, and no further action, filing or recording of any document is necessary or advisable in order to establish and perfect the Lien of this Trust Indenture on such Replacement Engine.

 

Upon satisfaction of all conditions to such substitution, (x) the Mortgagee shall execute and deliver to the Owner such documents and instruments, prepared at the Owner’s expense, as the Owner shall reasonably request to evidence the release of such replaced Engine from the Lien of this Trust Indenture, (y) the Mortgagee shall assign to the Owner all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (z) the Owner shall receive all insurance proceeds and other proceeds in respect of any Event of Loss giving rise to such replacement in accordance with Section 4.05(d) hereof.

 

4.05        Loss, Destruction or Requisition.

 

(a)           Event of Loss With Respect to the Airframe.  Upon the occurrence of an Event of Loss with respect to the Airframe, the Owner shall promptly (and in any event within 15 days after such occurrence) give the Mortgagee written notice of such Event of Loss.  The Owner shall, within 90 days after such occurrence, give the Mortgagee written notice of Owner’s election to either replace the Airframe as provided under Section 4.05(a)(i) or to make payment in respect of such Event of Loss as provided under Section 4.05(a)(ii) (it being agreed that if Owner shall not have given the Mortgagee such notice of such election within the above specified time period, the Owner shall be deemed to have elected to make payment in respect of such Event of Loss as provided under Section 4.05(a)(ii)):

 

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(i)            if Owner elects to replace the Airframe, Owner shall, subject to the satisfaction of the conditions contained in Section 4.05(c), as promptly as possible and in any event within 120 days after the occurrence of such Event of Loss, cause to be subjected to the Lien of this Trust Indenture, in replacement of the Airframe with respect to which the Event of Loss occurred, a Replacement Airframe and, if any Engine shall have been installed on the Airframe when it suffered the Event of Loss, a Replacement Engine therefor, such Replacement Airframe and Replacement Engines to be free and clear of all Liens except Permitted Liens and to have a value, utility and remaining useful life (without regard to hours or cycles remaining until the next regular maintenance check) at least equal to the Airframe or Engine, as the case may be, to be replaced thereby (assuming that such Airframe or Engine had been maintained in accordance with this Trust Indenture); provided that if the Owner shall not perform its obligation to effect such replacement under this clause (i) during the 120-day period of time provided herein, it shall pay the amounts required to be paid pursuant to and within the time frame specified in clause (ii) below; or

 

(ii)           if Owner elects to make a payment in respect of such Event of Loss of the Airframe, Owner shall make a payment to the Mortgagee for purposes of redeeming Equipment Notes in accordance with Section 2.09 hereof on a date on or before the Business Day next following the earlier of (x) the 120th day following the date of the occurrence of such Event of Loss, and (y) the fourth Business Day following the receipt of insurance proceeds with respect to such Event of Loss (but in any event not earlier than the date of Owner’s election under Section 4.05(a) to make payment under this Section 4.05 (a)(ii)); and upon such payment and payment of all other Secured Obligations then due and payable and, if any Related Event of Default has occurred and is continuing, all Related Secured Obligations then due and payable, the Mortgagee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the Airframe and the Engines, by executing and delivering to the Owner all documents and instruments as the Owner may reasonably request to evidence such release.

 

(b)           Effect of Replacement.  Should the Owner have provided a Replacement Airframe and Replacement Engines, if any, as provided for in Section 4.05(a)(i), (i) the Lien of this Trust Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any, as though no Event of Loss had occurred; (ii) the Mortgagee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if any, by executing and delivering to the Owner such documents and instruments as the Owner may reasonably request to evidence such release; and (iii) in the case of a replacement upon an Event of Loss, the Mortgagee shall assign to the Owner (or if directed by the Owner, the insurers having made payment in respect of the applicable Event of Loss) all claims the Mortgagee may have against any other Person arising from the Event of Loss and the Owner shall receive all insurance proceeds (other than those reserved to others under Section 4.06(b)) and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any investment interest thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and Replacement Engines, if any, as provided in Sections 4.05(d).

 

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(c)           Conditions to Airframe and Engine Replacement.  The Owner’s right to substitute a Replacement Airframe and Replacement Engines, if any, as provided in Section 4.05(a)(i) shall be subject to the fulfillment, at the Owner’s sole cost and expense, in addition to the conditions contained in such Section 4.05(a)(i) of the following conditions precedent:

 

(i)            on the date when the Replacement Airframe and Replacement Engines, if any, is subjected to the Lien of this Trust Indenture (such date being referred to in this Section 4.05 as the “Replacement Closing Date”), an executed counterpart of each of the following documents (or, in the case of the FAA bill of sale and full warranty bill of sale referred to below, a photocopy thereof) shall have been delivered to the Mortgagee:

 

(A)          a Trust Indenture Supplement covering the Replacement Airframe and Replacement Engines, if any, which shall have been duly filed for recordation pursuant to the Act or such other applicable law of such jurisdiction other than the United States in which the Replacement Airframe and Replacement Engines, if any, are to be registered in accordance with Section 4.02(d), as the case may be;

 

(B)           an FAA bill of sale (or a comparable document, if any, of another Aviation Authority, if applicable) covering the Replacement Airframe executed by the former owner thereof in favor of the Owner;

 

(C)           a full warranty (as to title) bill of sale, covering the Replacement Airframe and Replacement Engines, if any, executed by the former owner thereof in favor of the Owner (or, at the Owner’s option, other evidence of the Owner’s ownership of such Replacement Airframe and Replacement Engines, if any, reasonably satisfactory to the Mortgagee);

 

(D)          appropriate instruments assigning to the Mortgagee the benefits, if any, of all manufacturer’s and vendor’s warranties generally available and permitted to be assigned by the Owner with respect to such Replacement Engine; and

 

(E)           Uniform Commercial Code financing statements (or any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which the Replacement Airframe and Replacement Engines, if any, may be registered in accordance with Section 4.02(d)) as are deemed necessary or desirable by counsel for the Mortgagee to protect the security interests of the Mortgagee in the Replacement Airframe and Replacement Engines, if any;

 

(ii)           the Replacement Airframe and Replacement Engines, if any, shall be of the same model as the Airframe or Engines, as the case may be, or an improved model of such aircraft or engines of the manufacturer thereof, shall have a value and utility (without regard to hours or cycles remaining until the next regular maintenance

 

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check) at least equal to, and be in as good operating condition and repair as, the Airframe and any Engines replaced (assuming such Airframe and Engines had been maintained in accordance with this Trust Indenture);

 

(iii)          the Mortgagee (acting directly or by authorization to its special counsel) shall have received satisfactory evidence as to the compliance with Section 4.06 with respect to the Replacement Airframe and Replacement Engines, if any;

 

(iv)          on the Replacement Closing Date, (A) the Owner shall cause the Replacement Airframe and Replacement Engines, if any, to be subject to the Lien of this Trust Indenture free and clear of Liens (other than Permitted Liens) (B) the Replacement Airframe shall have been duly certified by the FAA or other applicable Aviation Authority as to type and airworthiness in accordance with the terms of this Trust Indenture and (C) application for registration of the Replacement Airframe in accordance with Section 4.02(d) shall have been duly made with the FAA or other applicable Aviation Authority and the Owner shall have authority to operate the Replacement Airframe;

 

(v)           the Mortgagee at the expense of the Owner, shall have received (A) an opinion of counsel to the Owner, or other counsel satisfactory to the Mortgagee, addressed to the Mortgagee, to the effect that the Replacement Airframe and Replacement Engine, if any, has or have duly been made subject to the Lien of this Trust Indenture, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Owner was in compliance with all relevant terms hereof) of the security interests in the Airframe, the Engines and title thereto created by this Trust Indenture and Mortgagee will be entitled to the benefits of Section 1110 with respect to the Replacement Airframe, provided that such opinion with respect to Section 1110 need not be delivered to the extent that immediately prior to such replacement the benefits of Section 1110 were not, solely by reason of a change in law or court interpretation thereof, available to Mortgagee, and (B) an opinion of Owner’s aviation law counsel reasonably satisfactory to and addressed to Mortgagee as to the due registration of any such Replacement Airframe and the due filing for recordation of each Trust Indenture Supplement with respect to such Replacement Airframe or Replacement Engine under the Act or such other applicable law of the jurisdiction other than the United States in which the Replacement Airframe is to be registered in accordance with Section 4.02(d), as the case may be; and

 

(vi)          the Owner shall have furnished to the Mortgagee a certificate signed by a duly authorized officer of the Owner or by a qualified aircraft engineer (who may be an employee of Owner) or an appraiser reasonably acceptable to the Mortgagee certifying that the Replacement Airframe and Replacement Engines, if any, have a value and utility and remaining useful life (without regard to hours and cycles) at least equal to the Airframe and any Engines so replaced (assuming that such Airframe and Engines had been maintained in accordance with this Trust Indenture).

 

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(d)           Non-Insurance Payments Received on Account of an Event of Loss.  Any amounts, other than insurance proceeds in respect of damage or loss not constituting an Event of Loss (the application of which is provided for in Annex B), received at any time by Mortgagee or Owner from any Government Entity or any other Person in respect of any Event of Loss will be applied as follows:

 

(i)            If such amounts are received with respect to the Airframe, and any Engine installed thereon at the time of such Event of Loss, upon compliance by Owner with the applicable terms of Section 4.05(c) with respect to the Event of Loss for which such amounts are received, such amounts shall be paid over to, or retained by, Owner;

 

(ii)           If such amounts are received with respect to an Engine (other than an Engine installed on the Airframe at the time such Airframe suffers an Event of Loss), upon compliance by Owner with the applicable terms of Section 4.04(e) with respect to the Event of Loss for which such amounts are received, such amounts shall be paid over to, or retained by, Owner;

 

(iii)          If such amounts are received, in whole or in part, with respect to the Airframe, and Owner makes, has made or is deemed to have made the election set forth in Section 4.05(a)(ii), such amounts shall be applied as follows:

 

first, if the sum described in Section 4.05(a)(ii) has not then been paid in full by Owner, such amounts shall be paid to Mortgagee to the extent necessary to pay in full such sum; and

 

second, the remainder, if any, shall be paid to Owner.

 

Any insurance, condemnation or other proceeds which result from an Event of Loss that are paid to the Mortgagee and have not been applied pursuant to this Section 4.05(d) shall be held by the Mortgagee as permitted by Section 7.04 hereof (provided that such moneys shall be invested as provided in Section 6.06 hereof) as additional security for the obligations of Owner under the Operative Agreements and such proceeds (and such investment earnings) shall be applied in accordance with this Section 4.05(d).

 

(e)           Requisition for Use.  In the event of a requisition for use by any Government Entity of the Airframe and the Engines, if any, or engines installed on such Airframe while such Airframe is subject to the Lien of this Trust Indenture, the Owner shall promptly notify the Mortgagee of such requisition and all of the Owner’s obligations under this Trust Indenture shall continue to the same extent as if such requisition had not occurred except to the extent that the performance or observance of any obligation by the Owner shall have been prevented or delayed by such requisition; provided that the Owner’s obligations under this Section 4.05 with respect to the occurrence of an Event of Loss for the payment of money and under Section 4.06 (except while an assumption of liability by the U.S. Government of the scope referred to in Section 4.02(c) is in effect) shall not be reduced or delayed by such requisition.  Any payments received by the Mortgagee or the Owner or Permitted Lessee from such Government Entity with respect to such requisition of use shall be paid over to, or retained by, the Owner.  In the event of an Event of Loss of an Engine resulting from the requisition for use

 

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by a Government Entity of such Engine (but not the Airframe), the Owner will replace such Engine hereunder by complying with the terms of Section 4.04(e) and any payments received by the Mortgagee or the Owner from such Government Entity with respect to such requisition shall be paid over to, or retained by, the Owner.

 

(f)            Certain Payments to be Held As Security.  Any amount referred to in this Section 4.05 or Section 4.06 which is payable or creditable to, or retainable by, the Owner shall not be paid or credited to, or retained by the Owner if at the time of such payment, credit or retention any Event of Default shall have occurred and be continuing, but shall be paid to and held by the Mortgagee as security for the obligations of the Owner under this Trust Indenture and the Operative Agreements, and at such time as there shall not be continuing any such Event of Default such amount and any gain realized as a result of investments required to be made pursuant to Section 6.06 shall to the extent not theretofore applied as provided herein, be paid over to the Owner.

 

4.06        Insurance.

 

(a)           Owner’s Obligation to Insure.  Owner shall comply with, or cause to be complied with, each of the provisions of Annex B, which provisions are hereby incorporated by this reference as if set forth in full herein.

 

(b)           Insurance for Own Account.  Nothing in Section 4.06 shall limit or prohibit (a) Owner from maintaining the policies of insurance required under Annex B with higher limits than those specified in Annex B, or (b) Mortgagee from obtaining insurance for its own account (and any proceeds payable under such separate insurance shall be payable as provided in the policy relating thereto); provided, however, that no insurance may be obtained or maintained that would limit or otherwise adversely affect the coverage of any insurance required to be obtained or maintained by Owner pursuant to this Section 4.06 and Annex B.

 

(c)           Indemnification by Government in Lieu of Insurance.  Mortgagee agrees to accept, in lieu of insurance against any risk with respect to the Aircraft described in Annex B, indemnification from, or insurance provided by, the U.S. Government or, upon the written consent of Mortgagee, other Government Entity, against such risk in an amount that, when added to the amount of insurance (including permitted self-insurance), if any, against such risk that Owner (or any Permitted Lessee) may continue to maintain, in accordance with this Section 4.06, shall be at least equal to the amount of insurance against such risk otherwise required by this Section 4.06.

 

(d)           Application of Insurance Proceeds.  As between Owner and Mortgagee, all insurance proceeds received as a result of the occurrence of an Event of Loss with respect to the Aircraft or any Engine under policies required to be maintained by Owner pursuant to this Section 4.06 will be applied in accordance with Section 4.05(d).  All proceeds of insurance required to be maintained by Owner, in accordance with Section 4.06 and Section B of Annex B, in respect of any property damage or loss not constituting an Event of Loss with respect to the Aircraft, Airframe or any Engine will be applied in accordance with Annex B hereto.

 

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4.07        Merger of Owner.

 

(a)           In General.  Owner shall not consolidate with or merge into any other person under circumstances in which Owner is not the surviving corporation, or convey, transfer or lease in one or more transactions all or substantially all of its assets to any other person, unless:

 

(i)            such person is organized, existing and in good standing under the Laws of the United States, any State of the United States or the District of Columbia and, upon consummation of such transaction, such person will be a U.S. Air Carrier;

 

(ii)           such person executes and delivers to Mortgagee a duly authorized, legal, valid, binding and enforceable agreement, reasonably satisfactory in form and substance to Mortgagee, containing an effective assumption by such person of the due and punctual performance and observance of each covenant, agreement and condition in the Operative Agreements to be performed or observed by Owner;

 

(iii)          if the Aircraft is, at the time, registered with the FAA, such person makes such filings and recordings with the FAA pursuant to the Act as shall be necessary to evidence such consolidation or merger or, if the Aircraft is, at the time, not registered with the FAA, such person makes such filings and recordings with the Aviation Authority as shall be necessary to evidence such consolidation or merger;

 

(iv)          immediately after giving effect to such consolidation or merger no Event of Default shall have occurred and be continuing; and

 

(v)           the Owner shall have delivered to the Mortgagee and the Policy Provider, an Officer’s Certificate, and an opinion of counsel (which may be the Owner’s General Counsel or such other internal counsel to the Owner as shall be reasonably satisfactory to the Loan Trustee), each stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (ii) above comply with this Section 4.07(a) and that all conditions precedent herein provided relating to such transaction have been complied with (except that such opinion need not cover the matters referred to in clause (iv) above and may rely, as to factual matters, on a certificate of an officer of the Owner) and, in the case of such opinion, that such assumption agreement has been duly authorized, executed and delivered by such successor Person and is enforceable against such successor Person in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity.

 

(b)           Effect of Merger.  Upon any such consolidation or merger of Owner with or into, or the conveyance, transfer or lease by Owner of all or substantially all of its assets to, any Person in accordance with this Section 4.07, such Person will succeed to, and be substituted for, and may exercise every right and power of, Owner under the Operative Agreements with the same effect as if such person had been named as “Owner” therein.  No such consolidation or merger, or conveyance, transfer or lease, shall have the effect of releasing Owner or such Person

 

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from any of the obligations, liabilities, covenants or undertakings of Owner under the Trust Indenture.

 

ARTICLE V

EVENTS OF DEFAULT; REMEDIES OF MORTGAGEE

 

5.01        Event of Default.  “Event of Default” means any of the following events (whatever the reason for such Event of Default and whether such event shall be voluntary or involuntary or come about or be effected by operation of Law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(i)            the failure of the Owner to pay (i) principal of, interest on, Break Amount, if any, or Prepayment Premium, if any, under any Equipment Note when due, and such failure shall continue unremedied for a period of ten (10) Business Days, or (ii) any other amount payable by it to the Note Holders under this Trust Indenture or the Participation Agreement when due, and such failure shall continue for a period in excess of ten (10) Business Days after Owner has received written notice from Mortgagee of the failure to make such payment when due;

 

(ii)           Owner shall fail to carry and maintain, or cause to be carried and maintained, insurance on and in respect of the Aircraft, Airframe and Engines in accordance with the provisions of Section 4.06; provided that no such lapse or cancellation shall constitute an Event of Default until the earlier of 30 days (or if 30 days is unavailable pursuant to Section D of Annex B, such shorter period as is available) after receipt by Mortgagee of written notice of such lapse or cancellation (or seven days or such shorter time as may be standard in the industry with respect to war risk insurance, provided that the Aircraft is returned to the United States of America and/or Canada and operated exclusively within the United States of America and Canada with customary North American buy-backs until such war risk insurance is restored then absence of such insurance shall not be an Event of Default) or the date that such lapse or cancellation is effective as to any Note Holder or Mortgagee;

 

(iii)          Owner shall fail to observe or perform (or caused to be observed and performed) in any material respect any other covenant, agreement or obligation set forth herein or in any other Operative Agreement to which Owner is a party and such failure shall continue unremedied for a period of 30 days from and after the date of written notice thereof to Owner from Mortgagee, unless such failure is capable of being corrected and Owner shall be diligently proceeding to correct such failure, in which case there shall be no Event of Default unless and until such failure shall continue unremedied for a period of 180 days after receipt of such notice;

 

(iv)          any representation or warranty made by Owner herein, in the Participation Agreement or in any other Operative Agreement to which Owner is a party (a) shall prove to have been untrue or inaccurate in any material respect as of the date made, (b)  such untrue or inaccurate representation or warranty is material at the time in

 

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question, and (c) the same shall remain uncured (to the extent of the adverse impact of such incorrectness on the interest of the Mortgagee) for a period in excess of 30 days from and after the date of written notice thereof from Mortgagee to Owner;

 

(v)           the Owner shall consent to the appointment of or taking possession by a receiver, trustee or liquidator of itself or of a substantial part of its property, or the Owner shall make a general assignment for the benefit of its creditors, or the Owner shall file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization, liquidation or other relief under any bankruptcy laws or insolvency laws (as in effect at such time), or an answer admitting the material allegations of a petition filed against it in any such case, or the Owner shall seek relief by voluntary petition, answer or consent, under the provisions of any other bankruptcy or similar law providing for the reorganization or winding-up of corporations (as in effect at such time), or the Owner shall seek an agreement, composition, extension or adjustment with its creditors under such laws or the Owner’s board of directors shall adopt a resolution authorizing corporate action in furtherance of any of the foregoing;

 

(vi)          an order, judgment or decree shall be entered by any court of competent jurisdiction appointing, without the consent of the Owner, a receiver, trustee or liquidator of the Owner or of any substantial part of its property, or any substantial part of the property of the Owner shall be sequestered, or granting any other relief in respect of the Owner as a debtor under any bankruptcy laws or other insolvency laws (as in effect at such time), and any such order, judgment, decree, or decree of appointment or sequestration shall remain in force undismissed, unstayed or unvacated for a period of 90 days after the date of entry thereof;

 

(vii)         a petition against the Owner in a proceeding under any bankruptcy laws or other insolvency laws (as in effect at such time) is filed and not withdrawn or dismissed within 90 days thereafter, or if, under the provisions of any law providing for reorganization or winding-up of corporations which may apply to the Owner, any court of competent jurisdiction shall assume jurisdiction, custody or control of the Owner of any substantial part of its property and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of 90 days; or

 

(viii)        any amount in respect of (i) the Equipment Notes or the Related Equipment Notes, including any payment of principal amount of, interest on, or Break Amount, if any, or Prepayment Premium, if any, with respect to any Equipment Note or Related Equipment Note has not been paid in full on the Final Payment Date or (ii) any other amounts payable under the Operative Agreements or Related Operative Agreements (including any amounts due and payable pursuant to the third paragraph of Section 2.02 of any Related Indenture and any indemnities payable by the Owner pursuant to Section 7.1 of the Participation Agreement or of any Related Participation Agreement) in each case that are due and payable on or before the Final Payment Date are not paid in full on the Final Payment Date;

 

provided, however, that, notwithstanding anything to the contrary contained in this Section 5.01, any failure of Owner to perform or observe any covenant, condition, agreement or any error in a

 

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representation or warranty shall not constitute an Event of Default if such failure or error is caused solely by reason of any event that constitutes an Event of Loss so long as Owner is continuing to comply with all of the terms of Section 4.04(e) and Section 4.05 hereof.

 

5.02        Remedies.

 

(a)           If an Event of Default shall have occurred and be continuing and so long as the same shall continue unremedied, then and in every such case the Mortgagee may exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article V and shall have and may exercise all of the rights and remedies of a secured party under the Uniform Commercial Code and may take possession of all or any part of the properties covered or intended to be covered by the Lien created hereby or pursuant hereto and may exclude the Owner and all persons claiming under it wholly or partly therefrom; provided, that the Mortgagee shall give the Owner twenty days’ prior written notice of its intention to sell the Aircraft.  Without limiting any of the foregoing, it is understood and agreed that the Mortgagee may exercise any right of sale of the Aircraft available to it, even though it shall not have taken possession of the Aircraft and shall not have possession thereof at the time of such sale.

 

(b)           If an Event of Default shall have occurred and be continuing, then and in every such case the Mortgagee may (and shall, upon receipt of a written demand therefor from a Majority in Interest of Note Holders), at any time, by delivery of written notice or notices to the Owner, declare all the Equipment Notes to be due and payable, whereupon the unpaid Original Amount of all Equipment Notes then outstanding, together with accrued but unpaid interest thereon and any Break Amount, if applicable, (but without Prepayment Premium) and other amounts due thereunder or otherwise payable hereunder, shall immediately become due and payable without presentment, demand, protest or notice, all of which are hereby waived; provided that if an Event of Default referred to in clause (v), (vi) or (vii) of Section 5.01 hereof shall have occurred, then and in every such case the unpaid Original Amount then outstanding, together with accrued but unpaid interest and any Break Amount, if applicable, (but without Prepayment Premium) and all other amounts due hereunder and under the Equipment Notes shall immediately and without further act become due and payable without presentment, demand, protest or notice, all of which are hereby waived.

 

This Section 5.02(b), however, is subject to the condition that, if at any time after the Original Amount of the Equipment Notes shall have become so due and payable, and before any judgment or decree for the payment of the money so due, or any thereof, shall be entered, all overdue payments of interest upon the Equipment Notes and all other amounts payable hereunder or under the Equipment Notes (except the Original Amount of the Equipment Notes which by such declaration shall have become payable) shall have been duly paid, and every other Default and Event of Default with respect to any covenant or provision of this Trust Indenture shall have been cured, then and in every such case a Majority in Interest of Note Holders may (but shall not be obligated to), by written instrument filed with the Mortgagee, rescind and annul the Mortgagee’s declaration (or such automatic acceleration) and its consequences; but no such rescission or annulment shall extend to or affect any subsequent Default or Event of Default or impair any right consequent thereon.

 

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(c)           The Note Holders shall be entitled, at any sale pursuant to this Section 5.02, to credit against any purchase price bid at such sale by such holder all or any part of the unpaid obligations owing to such Note Holder and secured by the Lien of this Trust Indenture (only to the extent that such purchase price would have been paid to such Note Holder pursuant to Article III hereof if such purchase price were paid in cash and the foregoing provisions of this subsection (c) were not given effect).

 

(d)           In the event of any sale of the Collateral, or any part thereof, pursuant to any judgment or decree of any court or otherwise in connection with the enforcement of any of the terms of this Trust Indenture, the unpaid Original Amount of all Equipment Notes then outstanding, together with accrued interest thereon and any Break Amount, if applicable, (but without Prepayment Premium) and other amounts due thereunder, shall immediately become due and payable without presentment, demand, protest or notice, all of which are hereby waived.

 

(e)           Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement (or its designee) is a Note Holder, the Mortgagee will not be authorized or empowered to acquire title to any Collateral or take any action with respect to any Collateral so acquired by it if such acquisition or action would cause any Trust to fail to qualify as a “grantor trust” for federal income tax purposes.

 

5.03        Return of Aircraft, Etc.

 

(a)           If an Event of Default shall have occurred and be continuing and the Equipment Notes have been accelerated, at the request of the Mortgagee, the Owner shall promptly execute and deliver to the Mortgagee such instruments of title and other documents as the Mortgagee may deem necessary or advisable to enable the Mortgagee or an agent or representative designated by the Mortgagee, at such time or times and place or places as the Mortgagee may specify, to obtain possession of all or any part of the Collateral to which the Mortgagee shall at the time be entitled hereunder.  If the Owner shall for any reason fail to execute and deliver such instruments and documents after such request by the Mortgagee, the Mortgagee may (i) obtain a judgment conferring on the Mortgagee the right to immediate possession and requiring the Owner to execute and deliver such instruments and documents to the Mortgagee, to the entry of which judgment the Owner hereby specifically consents to the fullest extent permitted by Law, and (ii) pursue all or part of such Collateral wherever it may be found and may enter any of the premises of Owner wherever such Collateral may be or be supposed to be and search for such Collateral and take possession of and remove such Collateral.  All expenses of obtaining such judgment or of pursuing, searching for and taking such property shall, until paid, be secured by the Lien of this Trust Indenture.

 

(b)           Upon every such taking of possession, the Mortgagee may, from time to time, at the expense of the Collateral, make all such expenditures for maintenance, use, operation, storage, insurance, leasing, control, management, disposition, modifications or alterations to and of the Collateral, as it may deem proper.  In each such case, the Mortgagee shall have the right to maintain, use, operate, store, insure, lease, control, manage, dispose of, modify or alter the Collateral and to exercise all rights and powers of the Owner relating to the Collateral, as the Mortgagee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, use, operation, storage, insurance, leasing, control,

 

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management, disposition, modification or alteration of the Collateral or any part thereof as the Mortgagee may determine, and the Mortgagee shall be entitled to collect and receive directly all rents, revenues and other proceeds of the Collateral and every part thereof, without prejudice, however, to the right of the Mortgagee under any provision of this Trust Indenture to collect and receive all cash held by, or required to be deposited with, the Mortgagee hereunder.  Such rents, revenues and other proceeds shall be applied to pay the expenses of the maintenance, use, operation, storage, insurance, leasing, control, management, disposition, improvement, modification or alteration of the Collateral and of conducting the business thereof, and to make all payments which the Mortgagee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Collateral or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Owner), and all other payments which the Mortgagee may be required or authorized to make under any provision of this Trust Indenture, as well as just and reasonable compensation for the services of the Mortgagee, and of all persons properly engaged and employed by the Mortgagee with respect hereto.

 

5.04        Remedies Cumulative.  Each and every right, power and remedy given to the Mortgagee specifically or otherwise in this Trust Indenture shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at Law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Mortgagee, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy.  No delay or omission by the Mortgagee in the exercise of any right, remedy or power or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any default on the part of the Owner or to be an acquiescence therein.

 

5.05        Discontinuance of Proceedings.  In case the Mortgagee shall have instituted any proceeding to enforce any right, power or remedy under this Trust Indenture by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Mortgagee, then and in every such case the Owner and the Mortgagee shall, subject to any determination in such proceedings, be restored to their former positions and rights hereunder with respect to the Collateral, and all rights, remedies and powers of the Owner or the Mortgagee shall continue as if no such proceedings had been instituted.

 

5.06        Waiver of Past Defaults.  Upon written instruction from a Majority in Interest of Note Holders, the Mortgagee shall waive any past Default hereunder and its consequences and upon any such waiver such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Trust Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon; provided, that in the absence of written instructions from all the Note Holders, the Mortgagee shall not waive any Default (i) in the payment of the Original Amount, any Break Amount, if applicable, any Prepayment Premium, if applicable, and interest and other amounts due under any Equipment Note then outstanding, or (ii) in respect of a covenant or provision

 

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hereof which, under Article X hereof, cannot be modified or amended without the consent of each Note Holder.

 

5.07        Appointment of Receiver.  The Mortgagee shall, as a matter of right, be entitled to the appointment of a receiver (who may be the Mortgagee or any successor or nominee thereof) for all or any part of the Collateral, whether such receivership be incidental to a proposed sale of the Collateral or the taking of possession thereof or otherwise, and the Owner hereby consents to the appointment of such a receiver and will not oppose any such appointment.  Any receiver appointed for all or any part of the Collateral shall be entitled to exercise all the rights and powers of the Mortgagee with respect to the Collateral.

 

5.08        Mortgagee Authorized to Execute Bills of Sale, Etc.  The Owner irrevocably appoints, while an Event of Default has occurred and is continuing, the Mortgagee, effective during the continuance of any Event of Default, the true and lawful attorney-in-fact of the Owner (which appointment is coupled with an interest) in its name and stead and on its behalf, for the purpose of effectuating any sale, assignment, transfer or delivery for the enforcement of the Lien of this Trust Indenture, whether pursuant to foreclosure or power of sale, assignments and other instruments as may be necessary or appropriate, with full power of substitution, the Owner hereby ratifying and confirming all that such attorney or any substitute shall do by virtue hereof in accordance with applicable law.  Nevertheless, if so requested by the Mortgagee or any purchaser, the Owner shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Mortgagee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request.

 

5.09        Rights of Note Holders to Receive Payment.  Notwithstanding any other provision of this Trust Indenture, the right of any Note Holder to receive payment of principal of, and Break Amount, if any, and interest on an Equipment Note on or after the respective due dates expressed in such Equipment Note, or to bring suit for the enforcement of any such payment on or after such respective dates in accordance with the terms hereof, shall not be impaired or affected without the consent of such Note Holder.

 

ARTICLE VI

DUTIES OF THE MORTGAGEE

 

6.01        Notice of Event of Default.  If the Mortgagee shall have Actual Knowledge of any Event of Default or Default, the Mortgagee shall give prompt written notice thereof to each Note Holder and to the Policy Provider.  Subject to the terms of Sections 5.02, 5.06, 6.02 and 6.03 hereof, the Mortgagee shall take such action, or refrain from taking such action, with respect to such Event of Default or Default (including with respect to the exercise of any rights or remedies hereunder) as the Mortgagee shall be instructed in writing by a Majority in Interest of Note Holders.  Subject to the provisions of Section 6.03, if the Mortgagee shall not have received instructions as above provided within 20 days after mailing notice of such Event of Default or Default to the Note Holders, the Mortgagee may, subject to instructions thereafter received pursuant to the preceding provisions of this Section 6.01, take such action, or refrain from taking such action, but shall be under no duty to take or refrain from taking any action, with respect to

 

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such Event of Default or Default as it shall determine advisable in the best interests of the Note Holders; provided, however, that the Mortgagee may not sell the Aircraft or any Engine without the consent of a Majority in Interest of Note Holders.  For all purposes of this Trust Indenture, in the absence of Actual Knowledge on the part of the Mortgagee, the Mortgagee shall not be deemed to have knowledge of a Default or an Event of Default (except, the failure of Owner to pay any installment of principal or interest within one Business Day after the same shall become due, which failure shall constitute knowledge of a Default) unless notified in writing by the Owner or one or more Note Holders.

 

6.02        Action Upon Instructions; Certain Rights and Limitations.  Subject to the terms of Sections 5.02(a), 5.06, 6.01 and 6.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Note Holders, the Mortgagee shall, subject to the terms of this Section 6.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions and (ii) give such notice or direction or exercise such right, remedy or power hereunder with respect to any part of the Collateral as shall be specified in such instructions; it being understood that without the written instructions of a Majority in Interest of Note Holders, the Mortgagee shall not, except as provided in Section 6.01, approve any such matter as satisfactory to the Mortgagee.

 

The Owner will file such continuation statements with respect to financing statements relating to the security interest created hereunder in the Collateral as may be specified from time to time in written instructions of a Majority in Interest of Note Holders (which instructions shall be accompanied by the form of such continuation statement so to be filed).  The Mortgagee will furnish to each Note Holder, promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Mortgagee hereunder.

 

6.03        Indemnification.  The Mortgagee shall not be required to take any action or refrain from taking any action under Section 6.01 (other than the first sentence thereof), 6.02 or Article V hereof unless the Mortgagee shall have been indemnified to its reasonable satisfaction against any liability, cost or expense (including counsel fees) which may be incurred in connection therewith pursuant to a written agreement with one or more Note Holders.  The Mortgagee agrees that it shall look solely to the Note Holders for the satisfaction of any indemnity (except expenses for foreclosure of the type referred to in clause “First” of Section 3.03 hereof) owed to it pursuant to this Section 6.03.  The Mortgagee shall not be under any obligation to take any action under this Trust Indenture or any other Operative Agreement and nothing herein or therein shall require the Mortgagee to expend or risk its own funds or otherwise incur the risk of any financial liability in the performance of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it (the written indemnity of any Note Holder who is a QIB, signed by an authorized officer thereof, in favor of, delivered to and in form reasonably satisfactory to the Mortgagee shall be accepted as reasonable assurance of adequate indemnity).  The Mortgagee shall not be required to take any action under Section 6.01 (other than the first sentence thereof) or 6.02 or Article V hereof, nor shall any other provision of this Trust Indenture or any other Operative Agreement be deemed to impose a duty

 

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on the Mortgagee to take any action, if the Mortgagee shall have been advised by counsel that such action is contrary to the terms hereof or is otherwise contrary to Law.

 

6.04        No Duties Except as Specified in Trust Indenture or Instructions.  The Mortgagee shall not have any duty or obligation to use, operate, store, lease, control, manage, sell, dispose of or otherwise deal with the Aircraft or any other part of the Collateral, or to otherwise take or refrain from taking any action under, or in connection with, this Trust Indenture or any part of the Collateral, except as expressly provided by the terms of this Trust Indenture or as expressly provided in written instructions from Note Holders as provided in this Trust Indenture; and no implied duties or obligations shall be read into this Trust Indenture against the Mortgagee.  The Mortgagee agrees that it will in its individual capacity and at its own cost and expense (but without any right of indemnity in respect of any such cost or expense under Section 8.01 hereof), promptly take such action as may be necessary duly to discharge all liens and encumbrances on any part of the Collateral which result from claims against it in its individual capacity not related to the ownership of the Aircraft or the administration of the Collateral or any other transaction pursuant to this Trust Indenture or any document included in the Collateral.

 

6.05        No Action Except Under Trust Indenture or Instructions.  The Mortgagee will not use, operate, store, lease, control, manage, sell, dispose of or otherwise deal with the Aircraft or any other part of the Collateral except in accordance with the powers granted to, or the authority conferred upon the Mortgagee pursuant to this Trust Indenture and in accordance with the express terms hereof.

 

6.06        Investment of Amounts Held by Mortgagee.  Any amounts held by the Mortgagee pursuant to Section 3.02 or 3.03, or pursuant to any provision of any other Operative Agreement providing for amounts to be held by the Mortgagee which are not distributed pursuant to the other provisions of Article III hereof shall be invested by the Mortgagee from time to time in Cash Equivalents as directed by the Owner so long as the Mortgagee may acquire the same using its best efforts.  All Cash Equivalents held by the Mortgagee pursuant to this Section 6.06 shall either be (a) registered in the name of, payable to the order of, or specially endorsed to, the Mortgagee, or (b) held in an Eligible Account.  Unless otherwise expressly provided in this Trust Indenture, any income realized as a result of any such investment, net of the Mortgagee’s reasonable fees and expenses in making such investment, shall be held and applied by the Mortgagee in the same manner as the principal amount of such investment is to be applied and any losses, net of earnings and such reasonable fees and expenses, shall be charged against the principal amount invested.  The Mortgagee shall not be liable for any loss resulting from any investment required to be made by it under this Trust Indenture other than by reason of its willful misconduct or gross negligence or negligence in the handling of funds, and any such investment may be sold (without regard to its maturity) by the Mortgagee without instructions whenever such sale is necessary to make a distribution required by this Trust Indenture.

 

ARTICLE VII

THE MORTGAGEE

 

7.01        Acceptance of Trusts and Duties.  The Mortgagee accepts the duties hereby created and applicable to it and agrees to perform the same but only upon the terms of this Trust

 

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Indenture and agrees to receive and disburse all monies constituting part of the Collateral in accordance with the terms hereof.  The Mortgagee, in its individual capacity, shall not be answerable or accountable under any circumstances, except (i) for its own willful misconduct or gross negligence (other than for the handling of funds actually received by it in accordance with the terms of the Operative Agreements or the Pass Through Agreements, for which the standard of accountability shall be willful misconduct or negligence), (ii) as provided in the fourth sentence of Section 2.03(a) hereof and the last sentence of Section 6.04 hereof, and (iii) from the inaccuracy of any representation or warranty of the Mortgagee (in its individual capacity) in the Participation Agreement or expressly made hereunder.

 

7.02        Absence of Duties.  Except in accordance with written instructions furnished pursuant to Section 6.01 or 6.02 hereof, and except as provided in, and without limiting the generality of, Sections 6.03, 6.04 and 7.07 hereof the Mortgagee shall have no duty (i) to see to any registration of the Aircraft or any recording or filing of this Trust Indenture or any other document, or to see to the maintenance of any such registration, recording or filing, (ii) to see to any insurance on the Aircraft or to effect or maintain any such insurance, whether or not Owner shall be in default with respect thereto, (iii) to see to the payment or discharge of any lien or encumbrance of any kind against any part of the Collateral, (iv) to confirm, verify or inquire into the failure to receive any financial statements from Owner, or (v) to inspect the Aircraft at any time or ascertain or inquire as to the performance or observance of any of Owner’s covenants herein or any Permitted Lessee’s covenants under any assigned Permitted Lease with respect to the Aircraft.

 

7.03        No Representations or Warranties as to Aircraft or Documents.  THE MORTGAGEE IN ITS INDIVIDUAL OR TRUST CAPACITY DOES NOT MAKE AND SHALL NOT BE DEEMED TO HAVE MADE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, COMPLIANCE WITH SPECIFICATIONS, CONDITION, DESIGN, QUALITY, DURABILITY, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER.  The Mortgagee, in its individual or trust capacities, does not make nor shall it be deemed to have made any representation or warranty as to the validity, legality or enforceability of this Trust Indenture, the Participation Agreement, the Equipment Notes, or the Purchase Agreement, or as to the correctness of any statement contained in any thereof, except for the representations and warranties of the Mortgagee in its individual capacity, in each case expressly made in this Trust Indenture or in the Participation Agreement.  The Note Holders make no representation or warranty hereunder whatsoever.

 

7.04        No Segregation of Monies; No Interest.  Any monies paid to or retained by the Mortgagee pursuant to any provision hereof and not then required to be distributed to the Note Holders, or the Owner as provided in Article III hereof need not be segregated in any manner except to the extent required by Law or Section 6.06 hereof, and may be deposited under such general conditions as may be prescribed by Law, and the Mortgagee shall not be liable for any

 

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interest thereon (except that the Mortgagee shall invest all monies held as directed by Owner so long as no Special Default or Event of Default has occurred and is continuing (or in the absence of such direction, by the Majority In Interest of Note Holders) in Cash Equivalents; provided, however, that any payments received, or applied hereunder, by the Mortgagee shall be accounted for by the Mortgagee so that any portion thereof paid or applied pursuant hereto shall be identifiable as to the source thereof.

 

7.05        Reliance; Agreements; Advice of Counsel.  The Mortgagee shall not incur any liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties.  The Mortgagee may accept a copy of a resolution of the Board of Directors (or Executive Committee thereof) of the Owner, certified by the Secretary or an Assistant Secretary thereof as duly adopted and in full force and effect, as conclusive evidence that such resolution has been duly adopted and that the same is in full force and effect.  As to the aggregate unpaid Original Amount of Equipment Notes outstanding as of any date, the Owner may for all purposes hereof rely on a certificate signed by any Vice President or other authorized corporate trust officer of the Mortgagee.  As to any fact or matter relating to the Owner the manner of which is not specifically described herein, the Mortgagee may for all purposes hereof rely on a certificate, signed by a duly authorized officer of the Owner, as to such fact or matter, and such certificate shall constitute full protection to the Mortgagee for any action taken or omitted to be taken by it in good faith in reliance thereon.  In the administration of the trusts hereunder, the Mortgagee may execute any of the trusts or powers hereof and perform its powers and duties hereunder directly or through agents or attorneys and may, at the expense of the Collateral, advise with counsel, accountants and other skilled persons to be selected and retained by it, and the Mortgagee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the written advice or written opinion of any such counsel, accountants or other skilled persons.

 

7.06        Compensation.  The Mortgagee shall be entitled to reasonable compensation for all services rendered hereunder and shall, on and subsequent to an Event of Default hereunder, have a priority claim on the Collateral for the payment of such compensation (other than any Unindemnified Tax) (and for expenses and disbursements, including the reasonable fees and expenses of counsel), to the extent that such compensation shall not be paid by Owner, and shall have the right, on and subsequent to an Event of Default hereunder, to use or apply any monies held by it hereunder in the Collateral toward such payments.  The Mortgagee agrees that it shall have no right against the Note Holders for any fee as compensation for its services as trustee under this Trust Indenture.

 

7.07        Instructions from Note Holders.  In the administration of the trusts created hereunder, the Mortgagee shall have the right to seek instructions from a Majority in Interest of Note Holders should any provision of this Trust Indenture appear to conflict with any other provision herein or should the Mortgagee’s duties or obligations hereunder be unclear, and the Mortgagee shall incur no liability in refraining from acting until it receives such instructions.  The Mortgagee shall be fully protected for acting in accordance with any instructions received under this Section 7.07.

 

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ARTICLE VIII

INDEMNIFICATION

 

8.01        Scope of Indemnification.  The Mortgagee shall be indemnified by the Owner to the extent and in the manner provided in Section 7 of the Participation Agreement.

 

ARTICLE IX

SUCCESSOR AND SEPARATE TRUSTEES

 

9.01        Resignation of Mortgagee; Appointment of Successor.

 

(a)           The Mortgagee or any successor thereto may resign at any time without cause by giving at least 30 days’ prior written notice to the Owner and each Note Holder, such resignation to be effective upon the acceptance of the trusteeship by a successor Mortgagee.  In addition, a Majority in Interest of Note Holders may at any time (but only with the consent of Owner, which consent shall not be unreasonably withheld, except that such consent shall not be necessary if an Event of Default is continuing) remove the Mortgagee without cause by an instrument in writing delivered to the Owner and the Mortgagee, and the Mortgagee shall promptly notify each Note Holder thereof in writing, such removal to be effective upon the acceptance of the trusteeship by a successor Mortgagee.  In the case of the resignation or removal of the Mortgagee, a Majority in Interest of Note Holders may appoint a successor Mortgagee by an instrument signed by such holders, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to Owner’s reasonable approval.  If a successor Mortgagee shall not have been appointed within 30 days after such notice of resignation or removal, the Mortgagee, the Owner or any Note Holder may apply to any court of competent jurisdiction to appoint a successor Mortgagee to act until such time, if any, as a successor shall have been appointed as above provided.  The successor Mortgagee so appointed by such court shall immediately and without further act be superseded by any successor Mortgagee appointed as above provided.

 

(b)           Any successor Mortgagee, however appointed, shall execute and deliver to the Owner and the predecessor Mortgagee an instrument accepting such appointment and assuming the obligations of the Mortgagee arising from and after the time of such appointment, and thereupon such successor Mortgagee, without further act, shall become vested with all the estates, properties, rights, powers and duties of the predecessor Mortgagee hereunder in the trust hereunder applicable to it with like effect as if originally named the Mortgagee herein; but nevertheless upon the written request of such successor Mortgagee, such predecessor Mortgagee shall execute and deliver an instrument transferring to such successor Mortgagee, upon the trusts herein expressed applicable to it, all the estates, properties, rights and powers of such predecessor Mortgagee, and such predecessor Mortgagee shall duly assign, transfer, deliver and pay over to such successor Mortgagee all monies or other property then held by such predecessor Mortgagee hereunder.

 

(c)           Any successor Mortgagee, however appointed, shall be a bank or trust company having its principal place of business in the Borough of Manhattan, City and State of

 

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New York; Chicago, Illinois; Hartford, Connecticut; Wilmington, Delaware; Salt Lake City, Utah; Charlotte, North Carolina; or Boston, Massachusetts and having (or whose obligations under the Operative Agreements are guaranteed by an affiliated entity having) a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of the Mortgagee hereunder upon reasonable or customary terms.

 

(d)           Any corporation into which the Mortgagee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Mortgagee shall be a party, or any corporation to which substantially all the corporate trust business of the Mortgagee may be transferred, shall, subject to the terms of paragraph (c) of this Section 9.01, be a successor Mortgagee and the Mortgagee under this Trust Indenture without further act.

 

9.02        Appointment of Additional and Separate Trustees.

 

(a)           Whenever (i) the Mortgagee shall deem it necessary or desirable in order to conform to any Law of any jurisdiction in which all or any part of the Collateral shall be situated or to make any claim or bring any suit with respect to or in connection with the Collateral, this Trust Indenture, any other Indenture Agreement, the Equipment Notes or any of the transactions contemplated by the Participation Agreement, (ii) the Mortgagee shall be advised by counsel satisfactory to it that it is so necessary or prudent in the interests of the Note Holders (and the Mortgagee shall so advise the Owner), or (iii) the Mortgagee shall have been requested to do so by a Majority in Interest of Note Holders, then in any such case, the Mortgagee (with the written consent of the Owner, so long as no Event of Default has occurred and is continuing) and, upon the written request of the Mortgagee, the Owner, shall execute and deliver an indenture supplemental hereto and such other instruments as may from time to time be necessary or advisable either (1) to constitute one or more bank or trust companies or one or more persons approved by the Mortgagee, either to act jointly with the Mortgagee as additional trustee or trustees of all or any part of the Collateral, or to act as separate trustee or trustees of all or any part of the Collateral, in each case with such rights, powers, duties and obligations consistent with this Trust Indenture as may be provided in such supplemental indenture or other instruments as the Mortgagee or a Majority in Interest of Note Holders may deem necessary or advisable, or (2) to clarify, add to or subtract from the rights, powers, duties and obligations theretofore granted any such additional or separate trustee, subject in each case to the remaining provisions of this Section 9.02. If the Owner shall not have taken any action required of it under this Section 9.02(a) that is permitted or required by its terms within 15 days after the receipt of a written request from the Mortgagee so to do, or if an Event of Default shall have occurred and be continuing, the Mortgagee may act under the foregoing provisions of this Section 9.02(a) without the concurrence of the Owner, and the Owner hereby irrevocably appoints (which appointment is coupled with an interest) the Mortgagee, its agent and attorney-in-fact to act for it under the foregoing provisions of this Section 9.02(a) in either of such contingencies.  The Mortgagee may, in such capacity, execute, deliver and perform any such supplemental indenture, or any such instrument, as may be required for the appointment of any such additional or separate trustee or for the clarification of, addition to or subtraction from the rights, powers, duties or obligations theretofore granted to any such additional or separate trustee.  In case any additional or separate trustee appointed under this Section 9.02(a) shall die, become incapable of acting,

 

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resign or be moved, all the assets, property, rights, powers, trusts, duties and obligations of such additional or separate trustee shall revert to the Mortgagee until a successor additional or separate trustee is appointed as provided in this Section 9.02(a).

 

(b)           No additional or separate trustee shall be entitled to exercise any of the rights, powers, duties and obligations conferred upon the Mortgagee in respect of the custody, investment and payment of monies and all monies received by any such additional or separate trustee from or constituting part of the Collateral or otherwise payable under any Operative Agreement to the Mortgagee shall be promptly paid over by it to the Mortgagee.  All other rights, powers, duties and obligations conferred or imposed upon any additional or separate trustee shall be exercised or performed by the Mortgagee and such additional or separate trustee jointly except to the extent that applicable Law of any jurisdiction in which any particular act is to be performed renders the Mortgagee incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations (including the holding of title to all or part of the Collateral in any such jurisdiction) shall be exercised and performed by such additional or separate trustee.  No additional or separate trustee shall take any discretionary action except on the instructions of the Mortgagee or a Majority in Interest of Note Holders.  No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder, except that the Mortgagee shall be liable for the consequences of its lack of reasonable care in selecting, and the Mortgagee’s own actions in acting with, any additional or separate trustee.  Each additional or separate trustee appointed pursuant to this Section 9.02 shall be subject to, and shall have the benefit of Articles V through IX and Article XI hereof insofar as they apply to the Mortgagee.  The powers of any additional or separate trustee appointed pursuant to this Section 9.02 shall not in any case exceed those of the Mortgagee hereunder.

 

(c)           If at any time the Mortgagee shall deem it no longer necessary or in order to conform to any such Law or take any such action or shall be advised by such counsel that it is no longer so necessary or desirable in the interest of the Note Holders, or in the event that the Mortgagee shall have been requested to do so in writing by a Majority in Interest of Note Holders, the Mortgagee and, upon the written request of the Mortgagee, the Owner, shall execute and deliver an indenture supplemental hereto and all other instruments and agreements necessary or proper to remove any additional or separate trustee.  The Mortgagee may act on behalf of the Owner under this Section 9.02(c) when and to the extent it could so act under Section  9.02(a) hereof.

 

ARTICLE X

SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE
AND OTHER DOCUMENTS

 

10.01      Instructions of Majority; Limitations.

 

(a)           The Mortgagee agrees with the Note Holders that it shall not enter into any amendment, waiver or modification of, supplement or consent to this Trust Indenture, or any other Operative Agreement to which it is a party, unless such supplement, amendment, waiver, modification or consent is consented to in writing by a Majority in Interest of Note Holders, but upon the written request of a Majority in Interest of Note Holders, the Mortgagee shall from time

 

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to time enter into any such supplement or amendment, or execute and deliver any such waiver, modification or consent, as may be specified in such request and as may be (in the case of any such amendment, supplement or modification), to the extent such agreement is required, agreed to by the Owner, as may be appropriate, the Airframe Manufacturer or the Engine Manufacturer; provided, however, that, without the consent of each holder of an affected Equipment Note then outstanding and of the Primary Liquidity Provider and Policy Provider, no such amendment, waiver or modification of the terms of, or consent under, any thereof, shall (i) modify any of the provisions of this Section 10.01, or of Article II or III or Section 4.03, 5.01, 5.02(c), 5.02(d), 6.01 or 6.02 hereof, the definitions of “Event of Default,” “Default,” “Majority in Interest of Note Holders,” “Break Amount”, “Prepayment Premium” or “Note Holder,” or the percentage of Note Holders required to take or approve any action hereunder, (ii) reduce the amount, or change the time of payment or method of calculation of any amount, of Original Amount, Break Amount, Prepayment Premium or interest with respect to any Equipment Note, (iii) reduce, modify or amend any indemnities in favor of the Mortgagee or the Note Holders (except that the Mortgagee may consent to any waiver or reduction of an indemnity payable to it), or (iv) permit the creation of any Lien on the Collateral or any part thereof other than Permitted Liens or deprive any Note Holder of the benefit of the Lien of this Trust Indenture on the Collateral, except as provided in connection with the exercise of remedies under Article V hereof; provided, further, that, without the consent of each holder of an affected Related Equipment Note then outstanding and any affected Primary Liquidity Provider, no amendment, waiver or modification of the terms hereof shall reduce the amount payable with respect to such Related Equipment Note, or the date on which any amount is payable with respect to such Related Equipment Note or deprive any Related Note Holder of the benefit of the Lien of this Trust Indenture or the Collateral, except as provided in Sections 2.05 or 11.01 hereof or in connection with the exercise of remedies under Article V hereof.

 

(b)           The Owner and the Mortgagee may enter into one or more agreements supplemental hereto without the consent of any Note Holder for any of the following purposes: (i) (a) to cure any defect or inconsistency herein or in the Equipment Notes, or to make any change not inconsistent with the provisions hereof (provided that such change does not adversely affect the interests of any Note Holder in its capacity solely as Note Holder) or (b) to cure any ambiguity or correct any mistake; (ii) to evidence the succession of another party as the Owner in accordance with the terms hereof or to evidence the succession of a new trustee hereunder pursuant hereto, the removal of the trustee hereunder or the appointment of any co-trustee or co-trustees or any separate or additional trustee or trustees; (iii) to convey, transfer, assign, mortgage or pledge any property to or with the Mortgagee or to make any other provisions with respect to matters or questions arising hereunder so long as such action shall not adversely affect the interests of the Note Holders in its capacity solely as Note Holder; (iv) to correct or amplify the description of any property at any time subject to the Lien of this Trust Indenture or better to assure, convey and confirm unto the Mortgagee any property subject or required to be subject to the Lien of this Trust Indenture, the Airframe or Engines or any Replacement Airframe or Replacement Engine; (v) to add to the covenants of the Owner for the benefit of the Note Holders, or to surrender any rights or power herein conferred upon the Owner; (vi) to add to the rights of the Note Holders; and (vii)  to include on the Equipment Notes any legend as may be required by Law.

 

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10.02      Mortgagee Protected.  If, in the opinion of the institution acting as Mortgagee hereunder, any document required to be executed by it pursuant to the terms of Section 10.01 hereof affects any right, duty, immunity or indemnity with respect to such institution under this Trust Indenture, such institution may in its discretion decline to execute such document.

 

10.03      Documents Mailed to Note Holders.  Promptly after the execution by the Owner or the Mortgagee of any document entered into pursuant to Section 10.01 hereof, the Mortgagee shall mail, by first class mail, postage prepaid, a copy thereof to Owner (if not a party thereto) and to each Note Holder at its address last set forth in the Equipment Note Register, but the failure of the Mortgagee to mail such copies shall not impair or affect the validity of such document.

 

10.04      No Request Necessary for Trust Indenture Supplement.  No written request or consent of the Note Holders pursuant to Section 10.01 hereof shall be required to enable the Mortgagee to execute and deliver a Trust Indenture Supplement specifically required by the terms hereof.

 

ARTICLE XI

MISCELLANEOUS

 

11.01      Termination of Trust Indenture.  Upon (or at any time after) payment in full of the Original Amount of, Break Amount, if any, Prepayment Premium, if any, and interest on and all other amounts due under all Equipment Notes and provided that there shall then be no other Secured Obligations due to the Indenture Indemnitees, the Note Holders and the Mortgagee hereunder or under the Participation Agreement or other Operative Agreement and for so long as no Related Special Default or Related Event of Default shall have occurred and be continuing, the Owner shall direct the Mortgagee to execute and deliver to or as directed in writing by the Owner an appropriate instrument releasing the Aircraft and the Engines and all other Collateral from the Lien of the Trust Indenture and the Mortgagee shall execute and deliver such instrument as aforesaid; provided, however, that this Trust Indenture and the trusts created hereby shall earlier terminate and this Trust Indenture shall be of no further force or effect upon any sale or other final disposition by the Mortgagee of all property constituting part of the Collateral and the final distribution by the Mortgagee of all monies or other property or proceeds constituting part of the Collateral in accordance with the terms hereof.  Except as aforesaid otherwise provided, this Trust Indenture and the trusts created hereby shall continue in full force and effect in accordance with the terms hereof.

 

11.02      No Legal Title to Collateral in Note Holders.  No holder of an Equipment Note shall have legal title to any part of the Collateral.  No transfer, by operation of law or otherwise, of any Equipment Note or other right, title and interest of any Note Holder in and to the Collateral or hereunder shall operate to terminate this Trust Indenture or entitle such holder or any successor or transferee of such holder to an accounting or to the transfer to it of any legal title to any part of the Collateral.

 

11.03      Sale of Aircraft by Mortgagee Is Binding.  Any sale or other conveyance of the Collateral, or any part thereof (including any part thereof or interest therein), by the Mortgagee

 

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made pursuant to the terms of this Trust Indenture shall bind the Note Holders and shall be effective to transfer or convey all right, title and interest of the Mortgagee, the Owner and such holders in and to such Collateral or part thereof.  No purchaser or other grantee shall be required to inquire as to the authorization, necessity, expediency or regularity of such sale or conveyance or as to the application of any sale or other proceeds with respect thereto by the Mortgagee.

 

11.04      Trust Indenture for Benefit of Owner, Mortgagee, Note Holders, Related Secured Parties and the other Indenture Indemnitees.  Nothing in this Trust Indenture, whether express or implied, shall be construed to give any person other than the Owner, the Mortgagee, the Note Holders, Related Secured Parties and the other Indenture Indemnitees, any legal or equitable right, remedy or claim under or in respect of this Trust Indenture, except that the persons referred to in the penultimate paragraph of Section 4.02(b) shall be third party beneficiaries of such paragraph.

 

11.05      Notices.  Unless otherwise expressly specified or permitted by the terms hereof, all notices, requests, demands, authorizations, directions, consents, waivers or documents provided or permitted by this Trust Indenture to be made, given, furnished or filed shall be in writing, personally delivered or mailed by certified mail, postage prepaid, or by facsimile or confirmed telex, and (i) if to the Owner, addressed to it at 118-29 Queens Blvd., Forest Hills, NY 11375, Attention:  Vice President – Corporate Finance, facsimile number (718) 709-3639 with a copy to:  JetBlue Airways Corporation, 118-29 Queens Blvd., Forest Hills, NY  11375, Attention:  General Counsel, facsimile number (718) 709-3631, (ii) if to Mortgagee, addressed to it at its office at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration, facsimile number (302) 636-4140, (iii) if to any Note Holder or any Indenture Indemnitee, addressed to such party at such address as such party shall have furnished by notice to the Owner and the Mortgagee, or, until an address is so furnished, addressed to the address of such party (if any) set forth on Schedule 1 to the Participation Agreement or in the Equipment Note Register.  Whenever any notice in writing is required to be given by the Owner or the Mortgagee or any Note Holder to any of the other of them, such notice shall be deemed given and such requirement satisfied when such notice is received, or if made, given, furnished or filed by facsimile or telecommunication transmission, when received unless received outside of business hours, in which case on the next open of business on a Business Day.  Any party hereto may change the address to which notices to such party will be sent by giving notice of such change to the other parties to this Trust Indenture.

 

11.06      Severability.  Any provision of this Trust Indenture which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.  Any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

11.07      No Oral Modification or Continuing Waivers.  No term or provision of this Trust Indenture or the Equipment Notes may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the Owner and the Mortgagee, in compliance with Section 10.01 hereof.  Any waiver of the terms hereof or of any Equipment Note shall be effective only in the specific instance and for the specific purpose given.

 

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11.08      Successors and Assigns.  All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, each of the parties hereto and the permitted successors and assigns of each, all as herein provided.  Any request, notice, direction, consent, waiver or other instrument or action by any Note Holder shall bind the successors and assigns of such holder.  Each Note Holder by its acceptance of an Equipment Note agrees to be bound by this Trust Indenture and all provisions of the Operative Agreements applicable to a Note Holder.

 

11.09      Headings.  The headings of the various Articles and sections herein and in the table of contents hereto are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.

 

11.10      Normal Commercial Relations.  Anything contained in this Trust Indenture to the contrary notwithstanding, Owner and Mortgagee may conduct any banking or other financial transactions, and have banking or other commercial relationships, with each other, fully to the same extent as if this Trust Indenture were not in effect, including without limitation the making of loans or other extensions of credit to Owner for any purpose whatsoever, whether related to any of the transactions contemplated hereby or otherwise.

 

11.11      Governing Law; Counterpart Form.  THIS TRUST INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.  THIS TRUST INDENTURE IS BEING DELIVERED IN THE STATE OF NEW YORK.  This Trust Indenture may be executed by the parties hereto in separate counterparts (or upon separate signature pages bound together into one or more counterparts), each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.

 

11.12      Voting By Note Holders.  All votes of the Note Holders shall be governed by a vote of a Majority in Interest of Note Holders, except as otherwise provided herein.

 

11.13      Bankruptcy.  It is the intention of the parties that the Mortgagee shall be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the right to take possession of the Aircraft, Airframe, Engines and Parts and to exercise any of its other rights or remedies as provided herein in the event of a case under Chapter 11 of the Bankruptcy Code in which Owner is a debtor, and in any instance where more than one construction is possible of the terms and conditions hereof or any other pertinent Operative Agreement, each such party agrees that a construction which would preserve such benefits shall control over any construction which would not preserve such benefits.

 

*   *   *

 

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IN WITNESS WHEREOF, the parties hereto have caused this Trust Indenture and Mortgage to be duly executed by their respective officers thereof duly authorized as of the day and year first above written.

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

WILMINGTON TRUST COMPANY,

 

as Mortgagee

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

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ANNEX B

 

INSURANCE

 

A.            Bodily Injury Liability and Property Damage Liability Insurance.

 

1.             Except as provided in paragraph 2 of this Section A or Section 4.06(c) of the Trust Indenture, and subject to the self insurance to the extent permitted by Section D hereof, Owner will at all times carry and maintain or cause to be carried and maintained, at no expense to any Additional Insured, on a non-discriminatory basis, comprehensive airline liability insurance, including passenger legal liability, bodily injury liability, property damage liability and contractual liability (exclusive of manufacturer’s product liability insurance and including, without limitation, aircraft liability war risk and allied perils insurance, if and to the extent the same is maintained by Owner (or Permitted Lessee) with respect to other Similar Aircraft owned or leased, and operated by Owner (or Permitted Lessee) on the same routes) with respect to the Aircraft (a) in an amount per occurrence not less than the greater of (x) the amount of comprehensive airline legal liability insurance from time to time applicable to aircraft owned or leased and operated by Owner of the same type and operating on similar routes as the Aircraft and (y) the Minimum Liability Insurance Amount, (b) of the type and covering the same risks as from time to time applicable to aircraft operated by the Owner (or any Permitted Lessee) of the same type which comprise the Owner’s (or such Permitted Lessee’s) fleet and (c) which is maintained in effect with insurers or reinsurers of recognized responsibility.  The Owner shall maintain cargo liability insurance in an amount not less than the amount of cargo liability insurance maintained for other Similar Aircraft operated by the Owner.

 

2.             During any period that the Aircraft or an Engine is on the ground and not in operation, the Owner may carry or cause to be carried as to such non-operating property, in lieu of the insurance required by paragraph 1 above, and subject to the self-insurance to the extent permitted by Section D hereof, insurance otherwise conforming to the provisions of said paragraph 1 except that (a) the amounts of coverage shall not be required to exceed the amounts of bodily injury liability and property damage liability insurance from time to time applicable to aircraft or engines, as the case may be, owned or leased by the Owner (or any Permitted Lessee) of the same or similar type as the Aircraft or Engine, as the case may be, which comprise the Owner’s (or such Permitted Lessee’s) fleet and which are on the ground and not in operation and (b) the scope of the risks covered and the type of insurance shall be the same as from time to time shall be applicable to aircraft or engines, as the case may be, owned or leased by the Owner (or any Permitted Lessee) of the same or similar type which comprise the Owner’s (or such Permitted Lessee’s) fleet and which are on the ground and not in operation.

 

B.            Insurance Against Loss or Damage to the Aircraft.

 

1.             Except as provided in paragraph 2 of this Section B or Section 4.06(c) of the Trust Indenture, and subject to the provisions of Section D hereof permitting self-insurance, Owner shall at all times carry and maintain or cause to be carried and maintained, at no expense to any Additional Insured, in effect with insurers or reinsurers of recognized responsibility all-risk aircraft hull insurance covering the Aircraft and all-risk aircraft hull insurance covering Engines and Parts while temporarily removed from the Aircraft and not replaced by similar

 

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components (including, without limitation, aircraft hull war risk and allied perils insurance, if and to the extent the same is maintained by Owner (or any Permitted Lessee) with respect to other aircraft owned or leased, and operated by Owner (or such Permitted Lessee) on the same routes or if the maintenance of such insurance is customary for air carriers with comparable route structures flying similar aircraft on similar routes); provided, that the foregoing insurance shall at all times while the Aircraft is subject to this Trust Indenture be for an amount (taking into account self-insurance to the extent permitted by Section D) not less than 105% of the unpaid Original Amount (the “Agreed Value”).  In the case of a loss with respect to an engine (other than an Engine) installed on the Airframe, Mortgagee shall promptly remit any payment made to it of any insurance proceeds in respect of such loss to Owner or any third party that is entitled to receive such proceeds.

 

All losses will be adjusted by Owner with the insurers; provided, however, that during a period when any Event of Default shall have occurred and be continuing, Owner shall not agree to any such adjustment without the consent of the Mortgagee.

 

The insurance payments for any property damage loss to the Airframe or any Engine not constituting an Event of Loss with respect thereto shall be paid, to the extent such proceeds are not paid by the insurer(s) directly to the person effecting the repair, as follows:  all payments in respect of losses less than or equal to $5,000,000 shall be paid to the Owner (or any Permitted Lessee if directed by the Owner), and (x) all payments with respect to losses greater than $5,000,000 up to an amount equal to the Agreed Value and (y) all payment with respect to losses received while a Special Default shall have occurred and be continuing, shall be paid to Mortgagee, to be held as collateral security for the Owner’s obligations hereunder, and applied to reimburse the Owner for accomplishing repairs and/or replacements as required, or to pay suppliers directly for such repairs and/or replacements as directed by the Owner (or any Permitted Lessee if directed by the Owner).  In the case of any payment to Mortgagee (other than in respect of an Event of Loss of the Aircraft) Mortgagee shall, upon receipt of evidence reasonably satisfactory to it that the damage giving rise to such payment shall have been repaired or that such payment shall then be required to pay for repairs then being made or the replacement of the Engine suffering the Event of Loss, pay the amount of such payment, and any interest or income earned thereon, to the Owner or its order.

 

2.             During any period that the Aircraft is on the ground and not in operation, the Owner may carry or cause to be carried, in lieu of the insurance required by paragraph 1 above, and subject to the self-insurance to the extent permitted by Section D hereof, insurance otherwise conforming with the provisions of said paragraph 1 except that the scope of the risks and the type of insurance shall be the same as from time to time applicable to aircraft owned or leased and operated by the Owner (or any Permitted Lessee) of the same or similar type which comprise the Owner’s (or such Permitted Lessee’s) fleet similarly on the ground and not in operation, provided that, subject to the self-insurance to the extent permitted by Section D hereof, the Owner shall maintain or cause to be maintained insurance against risk of loss or damage to the Aircraft in an amount at least equal to the Agreed Value during such period that the Aircraft is on the ground and not in operation.

 

C.            Reports, Etc.  The Owner will furnish, or cause to be furnished, to Mortgagee on or before the Closing Date and annually on or before the renewal dates of the Owner’s (or the

 

61



 

Permitted Lessee’s) relevant insurance policies, a report, signed by any recognized independent firm of insurance brokers selected by the Owner, reasonably acceptable to Mortgagee, which brokers may be regularly retained by the Owner or any Permitted Lessee (the “Insurance Broker”), describing in reasonable detail the commercial hull and liability insurance then carried and maintained with respect to the Aircraft and stating the opinion of such firm that, to its knowledge, such commercial insurance complies with the terms of this Annex B.  Such information shall remain confidential as provided in Section 6 of the Participation Agreement.  To the extent such agreement is reasonably obtainable, the Owner will cause such Insurance Broker to agree to advise the Mortgagee in writing of any default in the payment of premium and of any other act or omission on the part of the Owner (or any Permitted Lessee) of which it has actual knowledge and which will invalidate or render unenforceable, in whole or in part, any commercial insurance as required by the terms hereof and to advise Mortgagee at least thirty (30) days (seven (7) days in the case of war risk and allied perils insurance and ten (10) days in the case of nonpayment of premium) prior to the cancellation, lapse or material adverse change of any insurance maintained pursuant to this Annex B, provided that, if the notice period set forth above is not reasonably obtainable, the Insurance Broker shall provide for such shorter or longer period as may be obtainable in the international insurance market.  In the event that the Owner shall fail to maintain or cause to be maintained insurance as herein provided, Mortgagee may, at its sole option, provide such insurance and, in such event, the Owner shall, upon demand, reimburse Mortgagee for the cost thereof.

 

D.            Self-Insurance.  Owner may self-insure, by way of deductible, premium adjustment provisions in insurance policies, or otherwise, under a program applicable to all aircraft in the Owner’s fleet, the risks required to be insured against pursuant to Sections A and B hereof but in no case shall the self-insurance with respect to the Aircraft exceed the lesser of (x) 50% of the largest replacement value of any single aircraft in Owner’s fleet or (y) 1.5% of the average aggregate insurable value (during the preceding calendar year) of all aircraft on which Owner carries insurance, unless the Insurance Broker shall certify that the standard among major U.S. airlines is a higher level of self-insurance, in which case Owner may self-insure the Aircraft to such higher level; provided, however, that nothing contained in this Section D limiting Owner’s right to self-insure shall be deemed to apply to any mandatory minimum per aircraft (or, if applicable, per policy period or per annum), hull or liability insurance deductible imposed by hull or liability insurers that do not exceed industry standards for major U.S. airlines.

 

E.             Terms of Insurance Policies.  Any policies carried in accordance with Sections A and B hereof covering the Aircraft, and any policies taken out in substitution or replacement for any such policies, as applicable, (1) shall name the Additional Insureds as additional insureds, as their interests may appear, (2) shall name the Mortgagee as sole loss payee to the extent provided in clause (12) below, (3) may provide for self-insurance to the extent permitted in Section D, (4) shall provide that if the insurers cancel such insurance for any reason whatsoever, or the same is allowed to lapse for nonpayment of premium or if any material change is made in the insurance which adversely affects the interest of any Additional Insured, such cancellation, lapse, or change shall not be effective as to the Additional Insureds for thirty (30) days (or ten (10) days in the case of nonpayment of premium) after sending to (but, in the case of war risk and allied perils coverage, seven (7) days after sending to) the Additional Insureds of written notice by such insurers of such cancellation or change (or, if the case of war risk and allied perils insurance underwritten by the FAA, seven days after publication in the Federal Register), provided,

 

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however, that if, in respect of the war risk and allied perils coverage, such policies shall provide for such shorter period as may be available in the international insurance market, (5) shall provide that in respect of the Additional Insureds’ respective interests in such policies the insurance shall not be invalidated by any action or inaction of the Owner (or any Permitted Lessee) and shall insure the respective interests of the Additional Insureds regardless of any breach or violation of any warranty, declaration or condition contained in such policies by the Owner (or any Permitted Lessee), (6) shall be primary without any right of contribution from any other insurance which is carried by any Additional Insured, (7) shall expressly provide that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if a separate policy covered each insured, (8) shall waive any right of subrogation of the insurers against the Additional Insureds to the same extent Owner has agreed in the Operative Agreements to indemnify the Additional Insureds and shall waive any right of the insurers to set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of any liability of any Additional Insured, (9) shall provide that losses (other than for total loss of the Aircraft) shall be adjusted with the Owner (or, if an Event of Default shall have occurred which is continuing, with the Mortgagee), (10) shall provide that the Additional Insureds are not liable for any insurance premiums, (11) shall be effective with respect to both domestic and international operations, (12) shall provide that for any loss not constituting an Event of Loss (i) except as specified in clause (iii) below, in the event of a loss involving proceeds in excess of $5,000,000, all proceeds in respect of such loss up to the amount of the Agreed Value shall, to the extent such proceeds are not paid by the insurer(s) directly to the person effecting the repair, be payable to the Mortgagee to be held by the Mortgagee (whether such payment is made to the Owner (or any Permitted Lessee) or any third party), it being understood and agreed that in the case of any payment to the Mortgagee otherwise than in respect of an Event of Loss of the Aircraft, the Mortgagee shall, upon receipt of evidence reasonably satisfactory to it that the damage giving rise to such payment shall have been repaired or that such payment shall then be required to pay for repairs then being made or the replacement of the Engine suffering the Event of Loss, pay the amount of such payment, and any interest or income earned thereon, to the Owner or its order, (ii) except as specified in the following clause (iii), all proceeds of $5,000,000 or less (regardless of the total amount of proceeds resulting from such loss) and any proceeds of any loss in excess of the Agreed Value shall be paid to the Owner or its order and (iii) notwithstanding anything to the contrary contained in the preceding clauses (i) and (ii), if a Special Default shall have occurred and be continuing and the insurers have been notified thereof by Mortgagee, all proceeds of loss shall be paid to the Mortgagee and (13) if war risk coverage is maintained, shall contain a 50/50 clause in accordance with Provisional Claims Settlement Clause AVS103 (or its equivalent).

 

F.             AVN 67B.  Owner may procure endorsements to the relevant insurance policies required to be maintained pursuant to Section 4.06 of the Trust Indenture and this Annex B so as to incorporate the terms of AVN 67B into such policies, in which event, to the extent that any provision of any such AVN 67B endorsement conflicts or is otherwise inconsistent with the requirements of Section 4.06 of the Trust Indenture or this Annex B then such endorsement shall be deemed to satisfy such requirements to the extent covered by such endorsement.  If the terms of AVN 67B are incorporated into such policies, Owner will cause its Insurance Broker to issue an undertaking letter to the Additional Insureds confirming that the Insurance Broker will promptly advise the Additional Insureds upon becoming aware of the cancellation of or any material change in such insurance policies.

 

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G.            Insurers of Recognized Responsibility.  For the purposes of this Annex B, “insurers of recognized responsibility” shall include independent recognized commercial insurance companies and any captive and/or industry-managed insurance company, in each case of recognized responsibility; provided that if the primary insurers are not insurers of recognized responsibility but the relevant insurance policies are reinsured with insurers of recognized responsibility, the obligation of Owner hereunder to maintain such insurance with insurers of recognized responsibility shall be deemed satisfied if such insurance shall contain a customary “cut-through” endorsement and shall provide that any payment by the reinsurers shall be made notwithstanding any bankruptcy, insolvency or liquidation of the original insurer and/or that the original insurer has made no payment under the original policies.

 

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EXHIBIT A
TO
TRUST INDENTURE AND MORTGAGE [NXXXJB]

 

TRUST INDENTURE AND MORTGAGE [NXXXJB] SUPPLEMENT NO.

 

This TRUST INDENTURE AND MORTGAGE [NXXXJB] SUPPLEMENT NO.    , dated                          ,               (herein called this “Trust Indenture Supplement”) of JETBLUE AIRWAYS CORPORATION, as Owner (the “Owner”).

 

W I T N E S S E T H:

 

WHEREAS, the Trust Indenture and Mortgage, dated as of                           ,                  (as amended and supplemented to the date hereof, the “Trust Indenture”) between the Owner and Wilmington Trust Company, as Mortgagee (the “Mortgagee”), provides for the execution and delivery of a supplement thereto substantially in the form hereof, which shall particularly describe the Aircraft, and shall specifically mortgage such Aircraft to the Mortgagee; and

 

WHEREAS, the Trust Indenture relates to the Airframe and Engines described below, and a counterpart of the Trust Indenture is attached hereto and made a part hereof and this Trust Indenture Supplement, together with such counterpart of the Trust Indenture, is being filed for recordation on the date hereof with the FAA as one document;

 

NOW, THEREFORE, this Trust Indenture Supplement witnesseth that the Owner hereby confirms that the Lien of the Trust Indenture on the Collateral covers all of Owner’s right, title and interest in and to the following described property:

 

AIRFRAME

 

One airframe identified as follows:

 

Manufacturer

 

Model

 

U.S. Registration Number

 

Manufacturer’s Serial Number

 

 

 

 

 

 

 

 

 

Airbus

 

A320-232

 

 

 

 

 

 

together with all of the Owner’s right, title and interest in and to all Parts of whatever nature, whether now owned or hereinafter acquired and which are from time to time incorporated or installed in or attached to said airframe.

 

AIRCRAFT ENGINES

 

Two aircraft engines, each such engine having 750 or more rated take-off horsepower or the equivalent thereof, identified as follows:

 

Manufacturer

 

Manufacturer’s Model

 

Serial Number

 

 

 

 

1



 

together with all of Owner’s right, title and interest in and to all Parts of whatever nature, whether now owned or hereafter acquired and which are from time to time incorporated or installed in or attached to either of such engines.

 

Together with all of Owner’s right, title and interest in and to (a) all Parts of whatever nature, which from time to time are included within the definition of “Airframe” or “Engine”, whether now owned or hereafter acquired, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to the Airframe and Engines (other than additions, improvements, accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts) and (b) all Aircraft Documents.

 

TO HAVE AND TO HOLD all and singular the aforesaid property unto the Mortgagee, its successors and assigns, in trust for the equal and proportionate benefit and security of the Note Holders and the Indenture Indemnitees, except as provided in Section 2.12 and Article III of the Trust Indenture without any preference, distinction or priority of any one Equipment Note over any other by reason of priority of time of issue, sale, negotiation, date of maturity thereof or otherwise for any reason whatsoever, and for the uses and purposes and subject to the terms and provisions set forth in the Trust Indenture.

 

This Trust Indenture Supplement shall be construed as supplemental to the Trust Indenture and shall form a part thereof.  The Trust Indenture is hereby incorporated by reference herein and is hereby ratified, approved and confirmed.

 

AND, FURTHER, the Owner hereby acknowledges that the Aircraft referred to in this Trust Indenture Supplement has been delivered to the Owner and is included in the property of the Owner subject to the pledge and mortgage thereof under the Trust Indenture.

 

*   *   *

 

2



 

IN WITNESS WHEREOF, the Owner has caused this Trust Indenture Supplement to be duly executed by one of its officers, thereunto duly authorized, on the day and year first above written.

 

 

JETBLUE AIRWAYS CORPORATION

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

3



 

SCHEDULE I

 

 

 

Original Amount

 

Interest Rate

 

 

 

 

 

 

 

Series G-1:

 

$                    

 

For each Interest Period (or for purposes of calculating the Payment Due Rate, such other period as provided in Section 2.02 of the Trust Indenture), a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period (or such other period) and (y) 0.375% per annum.

 

 

 

 

 

 

 

Series G-2:

 

$                    

 

For each Interest Period (or for purposes of calculating the Payment Due Rate, such other period as provided in Section 2.02 of the Trust Indenture), a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period (or such other period) and (y) 0.450% per annum.

 

 

 

 

 

 

 

Series C:

 

$                    

 

For each Interest Period (or for purposes of calculating the Payment Due Rate, such other period as provided in Section 2.02 of the Trust Indenture), a rate per annum equal to the sum of (x) Three-Month LIBOR for such Interest Period (or such other period) and (y) 3.10% per annum.

 

 

1



 

EQUIPMENT NOTE AMORTIZATION

 

Payment Date

 

Percentage of Original
Amount to be Paid

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2


EX-4.27 29 a04-11378_4ex4d27.htm EX-4.27

Exhibit 4.27

 

 

CONFIDENTIAL:  SUBJECT TO RESTRICTIONS ON DISSEMINATION
SET FORTH IN SECTION 6 OF THIS AGREEMENT

 

 

PARTICIPATION AGREEMENT
[NXXXJB]

Dated as of [Date]

among

JETBLUE AIRWAYS CORPORATION,

Owner,

and

WILMINGTON TRUST COMPANY,

not in its individual capacity except as expressly provided herein,
but solely as Mortgagee, Subordination Agent under the
Intercreditor Agreement and Pass Through Trustee under
each of the Pass Through Trust Agreements


One Airbus Model A320-232 Aircraft

Bearing Manufacturer’s Serial No. [MSN]

 



 

Section 1.

Definitions and Construction

 

 

Section 2.

Secured Loans; Closing

 

 

 

 

 

 

2.1

Making of Loans and Issuance of Equipment Notes

 

 

2.2

Closing

 

 

 

 

 

 

Section 3.

Conditions Precedent

 

 

 

 

 

 

3.1

Conditions Precedent to Obligations of Pass Through Trustees

 

 

 

 

 

 

 

3.1.1

Equipment Notes

 

 

 

3.1.2

Delivery of Documents

 

 

 

3.1.3

Violation of Law

 

 

 

3.1.4

Representations, Warranties and Covenants

 

 

 

3.1.5

No Event of Default

 

 

 

3.1.6

No Event of Loss

 

 

 

3.1.7

Title

 

 

 

3.1.8

Certification

 

 

 

3.1.9

Section 1110

 

 

 

3.1.10

Filing

 

 

 

3.1.11

No Proceedings

 

 

 

3.1.12

Governmental Action

 

 

 

3.1.13

Note Purchase Agreement

 

 

 

3.1.14

Perfected Security Interest

 

 

 

 

 

 

 

3.2

Conditions Precedent to Obligations of Mortgagee

 

 

 

 

 

 

 

 

3.2.1

Documents

 

 

 

3.2.2

Other Conditions Precedent

 

 

 

 

 

 

 

3.3

Conditions Precedent to Obligations of Owner

 

 

 

 

 

 

 

 

3.3.1

Documents

 

 

 

3.3.2

Other Conditions Precedent

 

 

 

 

 

 

 

3.4

Post-Registration Matters

 

 

 

 

 

 

 

Section 4.

Representations and Warranties

 

 

 

 

 

 

 

4.1

Owner’s Representations and Warranties

 

 

 

 

 

 

 

 

4.1.1

Organization; Qualification

 

 

 

4.1.2

Corporate Authorization

 

 

 

4.1.3

No Violation

 

 

 

4.1.4

Approvals

 

 

 

4.1.5

Valid and Binding Agreements

 

 

 

4.1.6

Litigation

 

 

 

4.1.7

Financial Condition

 

 

 

4.1.8

Registration and Recordation

 

 

 

4.1.9

Location

 

 

 

i



 

 

4.1.10

No Event of Loss

 

 

 

4.1.11

Compliance With Laws

 

 

 

4.1.12

Securities Laws

 

 

 

4.1.13

Broker’s Fees

 

 

 

4.1.14

Section 1110

 

 

 

 

 

 

 

4.2

WTC’s Representations and Warranties

 

 

 

 

 

 

 

4.2.1

Organization, Etc

 

 

 

4.2.2

Corporate Authorization

 

 

 

4.2.3

No Violation

 

 

 

4.2.4

Approvals

 

 

 

4.2.5

Valid and Binding Agreements

 

 

 

4.2.6

Citizenship

 

 

 

4.2.7

No Liens

 

 

 

4.2.8

Litigation

 

 

 

4.2.9

Securities Laws

 

 

 

4.2.10

Investment

 

 

 

4.2.11

Taxes

 

 

 

4.2.12

Broker’s Fees

 

 

 

 

 

 

 

Section 5.

Covenants, Undertakings and Agreements

 

 

 

 

 

 

 

5.1

Covenants of Owner

 

 

 

 

 

 

 

5.1.1

Corporate Existence; U.S. Air Carrier

 

 

 

5.1.2

Notice of Change of Location

 

 

 

5.1.3

Certain Assurances

 

 

 

5.1.4

Securities Laws

 

 

 

 

 

 

 

5.2

Covenants of WTC

 

 

 

 

 

 

 

 

5.2.1

Liens

 

 

 

5.2.2

Securities Act

 

 

 

5.2.3

Performance of Agreements

 

 

 

5.2.4

Withholding Taxes

 

 

 

 

 

 

 

5.3

Covenants of Note Holders

 

 

 

 

 

 

 

5.3.1

Withholding Taxes

 

 

 

5.3.2

Transfer; Compliance

 

 

 

 

 

 

 

5.4

Agreements

 

 

 

 

 

 

 

5.4.1

Quiet Enjoyment

 

 

 

5.4.2

Consents

 

 

 

5.4.3

Insurance

 

 

 

5.4.4

Extent of Interest of Note Holders

 

 

 

5.4.5

Foreign Registration

 

 

 

ii



 

 

5.4.6

Interest in Certain Engines

 

 

 

5.4.7

Lease Assignment

 

 

 

 

 

 

 

Section 6.

Confidentiality

 

 

Section 7.

Indemnification and Expenses

 

 

 

 

 

 

7.1

General Indemnity

 

 

 

 

 

 

 

 

7.1.1

General

 

 

 

7.1.2

Exclusions

 

 

 

7.1.3

After Tax Basis; Etc

 

 

 

7.1.4

Notice and Contest

 

 

 

7.1.5

Subrogation; Reimbursement

 

 

 

 

 

 

 

7.2

Transaction Costs

 

 

 

 

 

 

 

 

7.2.1

Invoices and Payment

 

 

 

7.2.2

Payment of Other Expenses

 

 

 

 

 

 

 

Section 8.

Assignment or Transfer of Interests

 

 

 

 

 

 

8.1

Note Holders

 

 

8.2

Effect of Transfer

 

 

 

 

 

 

Section 9.

Section 1110

 

 

Section 10.

Change of Citizenship

 

 

 

 

 

 

10.1

Generally

 

 

10.2

Mortgagee

 

 

 

 

 

 

 

Section 11.

Miscellaneous

 

 

11.1

Amendments

 

 

11.2

Severability

 

 

11.3

Survival

 

 

11.4

Counterparts

 

 

11.5

No Waiver

 

 

11.6

Notices

 

 

11.7

Governing Law; Submission to Jurisdiction; Venue

 

 

11.8

Third Party Beneficiary

 

 

11.9

Entire Agreement

 

 

11.10

Further Assurances

 

 

 

 

 

 

 

ANNEX, SCHEDULES AND EXHIBITS

 

 

 

 

 

 

ANNEX A

-

Definitions

 

 

SCHEDULE 1

-

Accounts; Addresses

 

 

SCHEDULE 2

-

Loan Amounts

 

 

SCHEDULE 3

-

Certain Terms

 

 

SCHEDULE 4

-

Permitted Countries

 

 

 

iii




 

PARTICIPATION AGREEMENT

 


 

PARTICIPATION AGREEMENT [NXXXJB], dated as of [Date] (this “Agreement”), among (a) JETBLUE AIRWAYS CORPORATION, a Delaware corporation (“Owner”), (b) WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual capacity, except as expressly provided herein, but solely as Mortgagee (in its capacity as Mortgagee, “Mortgagee” and in its individual capacity, “WTC”), (c) WILMINGTON TRUST COMPANY, not in its individual capacity, except as expressly provided herein, but solely as Pass Through Trustee under each of the Pass Through Trust Agreements, (each, a “Pass Through Trustee”) and (d) WILMINGTON TRUST COMPANY, not in its individual capacity, except as expressly provided herein, but solely as Subordination Agent under the Intercreditor Agreement (“Subordination Agent”).

 

RECITALS

 

A.            Owner and AVSA S.A.R.L. have entered into the Purchase Agreement, pursuant to which, among other things, AVSA S.A.R.L. has agreed to sell to Owner and Owner has agreed to purchase from AVSA S.A.R.L., certain aircraft, including the Aircraft.

 

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

 

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

 

D.            Owner and Mortgagee, concurrently with the execution and delivery hereof, have entered into the Trust Indenture for the benefit of the Note Holders, pursuant to which, among other things, Owner agrees (1) to issue Equipment Notes, in the amounts and otherwise as provided in the Trust Indenture, and (2) to mortgage, pledge and assign to Mortgagee all of Owner’s right, title and interest in the Collateral to secure the Secured Obligations and Related Secured Obligations, including, without limitation, Owner’s obligations under the Equipment Notes.

 

E.             The parties hereto wish to set forth in this Agreement the terms and conditions upon and subject to which the aforesaid transactions shall be effected.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1.              Definitions and Construction.  Capitalized terms used but not defined herein shall have the respective meanings set forth or incorporated by reference, and shall be

 



 

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

 

Section 2.              Secured Loans; Closing.

 

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

 

2.2           Closing.

 

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

 

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

 

Section 3.              Conditions Precedent.

 

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

 

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

 

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

 

(i)            this Agreement;

 

(ii)           the Trust Indenture;

 

(iii)          the initial Trust Indenture Supplement;

 

2



 

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

 

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

 

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

 

(vii)         the Bills of Sale;

 

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

 

(ix)           (A) a copy of the Certificate of Incorporation and By-Laws of Owner and resolutions of the board of directors of Owner and/or the executive committee thereof, in each case certified as of the Closing Date, by the Secretary or an Assistant Secretary of Owner, duly authorizing the execution, delivery and performance by Owner of the Operative Agreements required to be executed and delivered by Owner on or prior to the Closing Date in accordance with the provisions hereof and thereof; and (B) an incumbency certificate of Owner as to the person or persons authorized to execute and deliver the Operative Agreements on behalf of Owner;

 

(x)            an Officer’s Certificate of Owner, dated as of the Closing Date, stating that its representations and warranties set forth in this Agreement are true and correct as of the Closing Date (or, to the extent that any such representation and warranty expressly relates to an earlier date, true and correct as of such earlier date);

 

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

 

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

 

(xiii)         the Financing Statement;

 

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

 

3



 

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

 

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

 

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

 

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

 

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

 

(xv)         the French Pledge Agreement.

 

3.1.3        Violation of Law.  No change shall have occurred after the date of this Agreement in any applicable Law that makes it a violation of Law for (a) Owner, any Pass Through Trustee, Subordination Agent or Mortgagee to execute, deliver and perform the Operative Agreements to which any of them is a party or (b) any Pass Through Trustee to make the loan contemplated by Section 2.1, to acquire an Equipment Note or to realize the benefits of the security afforded by the Trust Indenture.

 

3.1.4        Representations, Warranties and Covenants.  The representations and warranties of each other party to this Agreement made, in each case, in this Agreement and in any other Operative Agreement to which it is a party, shall be true and accurate in all material respects as of the Closing Date (unless any such representation and warranty shall have been made with reference to a specified date, in which case such representation and warranty shall be true and accurate as of such specified date) and each other party to this Agreement shall have performed and observed, in all material respects, all of its covenants, obligations and agreements in this Agreement and in any other Operative Agreement to which it is a party to be observed or performed by it as of the Closing Date.

 

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

 

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

 

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

 

4



 

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

 

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

 

3.1.10      Filing.  On the Closing Date (a) the FAA Filed Documents shall have been duly filed for recordation (or shall be in the process of being so duly filed for recordation) with the FAA in accordance with the Act and (b) the Financing Statement shall have been duly filed (or shall be in the process of being so duly filed) in the appropriate jurisdiction.

 

3.1.11      No Proceedings.  No action or proceeding shall have been instituted, nor shall any action be threatened in writing, before any Government Entity, nor shall any order, judgment or decree have been issued or proposed to be issued by any Government Entity, to set aside, restrain, enjoin or prevent the completion and consummation of this Agreement or any other Operative Agreement or the transactions contemplated hereby or thereby.

 

3.1.12      Governmental Action.  All appropriate action required to have been taken prior to the Closing Date by the FAA, or any governmental or political agency, subdivision or instrumentality of the United States, in connection with the transactions contemplated by this Agreement shall have been taken, and all orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be in effect on the Closing Date in connection with the transactions contemplated by this Agreement shall have been issued and be in full force and effect on the Closing Date.

 

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

 

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

 

3.2           Conditions Precedent to Obligations of Mortgagee.  The obligation of Mortgagee to authenticate the Equipment Notes on the Closing Date is subject to the satisfaction or waiver by Mortgagee, on or prior to the Closing Date, of the conditions precedent set forth below in this Section 3.2.

 

3.2.1        Documents.  Executed originals of the agreements, instruments, certificates or documents described in Section 3.1.2 shall have been received by Mortgagee, except as specifically provided therein, unless the failure to receive any such agreement, instrument, certificate or document is the result of any action or inaction by Mortgagee.

 

5



 

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

 

3.3           Conditions Precedent to Obligations of Owner.  The obligation of Owner to participate in the transaction contemplated hereby on the Closing Date is subject to the satisfaction or waiver by Owner, on or prior to the Closing Date, of the conditions precedent set forth below in this Section 3.3.

 

3.3.1        Documents.  Executed originals of the agreements, instruments, certificates or documents described in Section 3.1.2 shall have been received by Owner, except as specifically provided therein, and shall be satisfactory to Owner, unless the failure to receive any such agreement, instrument, certificate or document is the result of any action or inaction by Owner.  In addition, the Owner shall have received the following:

 

(i)            (A) an incumbency certificate of WTC as to the person or persons authorized to execute and deliver the Operative Agreements on behalf of WTC and (B) a copy of the Certificate of Incorporation and By-Laws and general authorizing resolution of the board of directors (or executive committee) or other satisfactory evidence of authorization of WTC, certified as of the Closing Date by the Secretary or Assistant or Attesting Secretary of WTC, which authorize the execution, delivery and performance by WTC of the Operative Agreements to which it is a party; and

 

(ii)           an Officer’s Certificate of WTC, dated as of the Closing Date, stating that its representations and warranties in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, set forth in this Agreement are true and correct as of the Closing Date (or, to the extent that any such representation and warranty expressly relates to an earlier date, true and correct as of such earlier date);

 

3.3.2        Other Conditions Precedent.  Each of the conditions set forth in Sections 3.1.3, 3.1.4, 3.1.6, 3.1.7, 3.1.8, 3.1.10, 3.1.11, 3.1.12 and 3.1.13 shall have been satisfied or waived by Owner, unless the failure of any such condition to be satisfied is the result of any action or inaction by Owner.

 

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

 

Section 4.              Representations and Warranties.

 

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

 

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

 

6



 

identification number 2936994 and its true and complete name as indicated on the public record of the State of Delaware is “JetBlue Airways Corporation”.  Owner has the corporate power and authority to conduct the business in which it is currently engaged and to own or hold under lease its properties and to enter into and perform its obligations under the Operative Agreements to which it is a party.  Owner is duly qualified to do business as a foreign corporation in good standing in each jurisdiction in which the nature and extent of the business conducted by it, or the ownership of its properties, requires such qualification, except where the failure to be so qualified would not give rise to a Material Adverse Change to Owner.

 

4.1.2        Corporate Authorization.  Owner has taken, or caused to be taken, all necessary corporate action (including, without limitation, the obtaining of any consent or approval of stockholders required by its Certificate of Incorporation or By-Laws) to authorize the execution and delivery of each of the Operative Agreements to which it is a party, and the performance of its obligations thereunder.

 

4.1.3        No Violation.  The execution and delivery by Owner of the Operative Agreements to which it is a party, the performance by Owner of its obligations thereunder and the consummation by Owner on the Closing Date of the transactions contemplated thereby, do not and will not (a) violate any provision of the Certificate of Incorporation or By-Laws of Owner, (b) violate any Law applicable to or binding on Owner or (c) violate or constitute any default under (other than any violation or default that would not result in a Material Adverse Change to Owner), or result in the creation of any Lien (other than Permitted Liens) upon the Aircraft under, any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, loan or other material agreement, instrument or document to which Owner is a party or by which Owner or any of its properties is bound.

 

4.1.4        Approvals.  The execution and delivery by Owner of the Operative Agreements to which it is a party, the performance by Owner of its obligations thereunder and the consummation by Owner on the Closing Date of the transactions contemplated thereby do not and will not require the consent or approval of, or the giving of notice to, or the registration with, or the recording or filing of any documents with, or the taking of any other action in respect of, (a) any trustee or other holder of any debt of Owner and (b) any Government Entity, other than the filing of (w) the FAA Filed Documents and the Financing Statement (and continuation statements periodically), (x) filings, recordings, notices or other ministerial actions pursuant to any routine recording, contractual or regulatory requirements applicable to it, (y) filings, recordings, notices or other actions contemplated by the Operative Agreements in connection with the leasing or reregistration of the Aircraft and (z) filings, recordings, notices or other actions all of which have either been, or will be, completed on or prior to the Closing Date and will be in full force and effect on the Closing Date.

 

4.1.5        Valid and Binding Agreements.  The Operative Agreements to which it is a party have been duly authorized, executed and delivered by Owner and, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, constitute the legal, valid and binding obligations of Owner and are enforceable against Owner in accordance with the respective terms thereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium and other similar Laws affecting the rights

 

7



 

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

 

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

 

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

 

4.1.8        Registration and Recordation.  Except for (a) the registration of the Aircraft with the FAA pursuant to the Act in the name of Owner, (b) the filing for recordation (and recordation) of the FAA Filed Documents, (c) the filing of the Financing Statement (and continuation statements relating thereto at periodic intervals) and (d) the affixation of the nameplates referred to in Section 4.02(e) of the Trust Indenture, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the UCC) is necessary in order to establish and perfect the Mortgagee’s security interest in the Aircraft, as against Owner and any other Person, in each case, in any applicable jurisdictions in the United States.

 

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

 

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

 

4.1.11      Compliance With Laws.

 

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

 

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(b)           Owner holds all licenses, permits and franchises from the appropriate Government Entities necessary to authorize Owner to lawfully engage in air transportation and to carry on scheduled commercial passenger service as currently conducted, except where the failure to so hold any such license, permit or franchise would not give rise to a Material Adverse Change to Owner.

 

(c)           Owner is not an “investment company” or a company controlled by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

4.1.12      Securities Laws.  Neither Owner nor any person authorized to act on its behalf has directly or indirectly offered any beneficial interest or Security relating to the ownership of the Aircraft or any of the Equipment Notes or any other interest in or security under the Trust Indenture, for sale, to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any person in violation of the Securities Act.

 

4.1.13      Broker’s Fees.  No Person acting on behalf of Owner is or will be entitled to any broker’s fee, commission or finder’s fee in connection with the Transactions.

 

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

 

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

 

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

 

4.2.2        Corporate Authorization.  WTC has taken, or caused to be taken, all necessary corporate action (including, without limitation, the obtaining of any consent or approval of stockholders required by Law or by its Certificate of Incorporation or By-Laws) to authorize the execution and delivery by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or as Subordination Agent, as the case may be, of the Mortgagee Agreements, the Pass Through Trustee Agreements, and the Subordination Agent Agreements and the performance of its obligations thereunder.

 

4.2.3        No Violation.  The execution and delivery by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or as Subordination Agent, as the case may be, of the Mortgagee Agreements, the Pass Through Trustee Agreements and the Subordination Agent Agreements, the performance by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or as Subordination Agent, as the case may be, of its obligations thereunder and the consummation on the Closing Date of the transactions contemplated thereby, do not and will

 

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not (a) violate any provision of the Certificate of Incorporation or By-Laws of WTC, (b) violate any Law applicable to or binding on WTC, in its individual capacity or (except in the case of any Law relating to any Plan) as Mortgagee, a Pass Through Trustee or Subordination Agent, or (c) violate or constitute any default under (other than any violation or default that would not result in a Material Adverse Change to WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent), or result in the creation of any Lien (other than the lien of the Trust Indenture) upon any property of WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, or any of WTC’s subsidiaries under, any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, loan or other agreement, instrument or document to which WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, is a party or by which WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, or any of their respective properties is bound.

 

4.2.4        Approvals.  The execution and delivery by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, of the Mortgagee Agreements, the Pass Through Trustee Agreements and the Subordination Agent Agreements, the performance by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, of its obligations thereunder and the consummation on the Closing Date by WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, of the transactions contemplated thereby do not and will not require the consent, approval or authorization of, or the giving of notice to, or the registration with, or the recording or filing of any documents with, or the taking of any other action in respect of, (a) any trustee or other holder of any debt of WTC or (b) any Government Entity, other than the filing of the FAA Filed Documents and the Financing Statement.

 

4.2.5        Valid and Binding Agreements.  The Mortgagee Agreements, the Pass Through Trustee Agreements and the Subordination Agent Agreements have been duly authorized, executed and delivered by WTC and, assuming the due authorization, execution and delivery by the other party or parties thereto, constitute the legal, valid and binding obligations of WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, and are enforceable against WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, as the case may be, in accordance with the respective terms thereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar Laws affecting the rights of creditors generally and general principles of equity, whether considered in a proceeding at law or in equity.

 

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

 

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

 

4.2.8        Litigation.  There are no pending or, to the Actual Knowledge of WTC, threatened actions or proceedings against WTC, in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, before any court, administrative agency or

 

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

 

4.2.9        Securities Laws.  Neither WTC nor any person authorized to act on its behalf has directly or indirectly offered any beneficial interest or Security relating to the ownership of the Aircraft or any interest in the Collateral or any of the Equipment Notes or any other interest in or security under the Collateral for sale to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any Person other than the Subordination Agent and the Pass Through Trustees, except for the offering and sale of the Pass Through Certificates.

 

4.2.10      Investment.  The Equipment Notes to be acquired by the Subordination Agent are being acquired by it for the account of the Pass Through Trustees, for investment and not with a view to any resale or distribution thereof, except that, subject to the restrictions on transfer set forth in Section 8, the disposition by it of its Equipment Notes shall at all times be within its control.

 

4.2.11      Taxes.  There are no Taxes payable by any Pass Through Trustee or WTC, as the case may be, imposed by the State of Delaware or any political subdivision or taxing authority thereof in connection with the execution, delivery and performance by such Pass Through Trustee or WTC, as the case may be, of this Agreement or any of the Pass Through Trustee Agreements (other than franchise or other taxes based on or measured by any fees or compensation received by any such Pass Through Trustee or WTC, as the case may be, for services rendered in connection with the transactions contemplated by any of the Pass Through Trust Agreements), and there are no Taxes payable by any Pass Through Trustee or WTC, as the case may be, imposed by the State of Delaware or any political subdivision thereof in connection with the acquisition, possession or ownership by any such Pass Through Trustee of any of the Equipment Notes (other than franchise or other taxes based on or measured by any fees or compensation received by any such Pass Through Trustee or WTC, as the case may be, for services rendered in connection with the transactions contemplated by any of the Pass Through Trust Agreements), and, assuming that the trusts created by the Pass Through Trust Agreements will not be taxable as corporations, but, rather, each will be characterized as a grantor trust under subpart E, Part I of Subchapter J of the Code or as a partnership under Subchapter K of the Code, such trusts will not be subject to any Taxes imposed by the State of Delaware or any political subdivision thereof.

 

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

 

Section 5.              Covenants, Undertakings and Agreements.

 

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

 

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5.1.1        Corporate Existence; U.S. Air Carrier.  Owner shall at all times maintain its corporate existence, except as permitted by Section 4.07 of the Trust Indenture, and shall at all times remain a U.S. Air Carrier.

 

5.1.2        Notice of Change of Location.  Owner will give Mortgagee timely written notice (but in any event within 30 days prior to the expiration of the period of time specified under applicable Law to prevent lapse of perfection) of any change in its “location” (as such term is used in Section 9-307 of Article 9 of the UCC) and will promptly take any action required by Section 5.1.3(c) as a result of such change in location.

 

5.1.3        Certain Assurances.

 

(a)           Owner shall duly execute, acknowledge and deliver, or shall cause to be executed, acknowledged and delivered, all such further agreements, instruments, certificates or documents, and shall do and cause to be done such further acts and things, in any case, as Mortgagee shall reasonably request for accomplishing the purposes of this Agreement and the other Operative Agreements, provided that any instrument or other document so executed by Owner will not expand any obligations or limit any rights of Owner in respect of the transactions contemplated by any Operative Agreement.

 

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

 

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

 

5.1.4        Securities Laws.  Neither Owner nor any person authorized to act on its behalf will directly or indirectly offer any beneficial interest or Security relating to the ownership of the Aircraft or any interest in any of the Equipment Notes or any other interest in or security under the Trust Indenture, for sale to, or solicit any offer to acquire any such interest or security from, or sell any such interest or security to, any person in violation of the Securities Act or applicable state or foreign securities Laws.

 

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

 

5.2.1        Liens.  WTC (a) will not directly or indirectly create, incur, assume or suffer to exist any Lien attributable to it on or with respect to all or any part of the Collateral or the

 

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Aircraft, (b) will, at its own cost and expense, promptly take such action as may be necessary to discharge any Lien attributable to WTC on all or any part of the Collateral or the Aircraft and (c) will personally hold harmless and indemnify Owner, each Note Holder and each of their respective Affiliates, successors and permitted assigns and the Collateral from and against (i) any and all Expenses, (ii) any reduction in the amount payable out of the Collateral and (iii) any interference with the possession, operation or other use of all or any part of the Aircraft, imposed on, incurred by or asserted against any of the foregoing as a consequence of any such Lien.

 

5.2.2        Securities Act.  WTC in its individual capacity or as Mortgagee, as Pass Through Trustee or Subordination Agent, will not offer any beneficial interest or Security relating to the ownership of the Aircraft or any interest in the Collateral, or any of the Equipment Notes or any other interest in or security under the Trust Indenture for sale to, or solicit any offer to acquire any such interest or security from, or sell any such interest or security to, any Person in violation of the Securities Act or applicable state or foreign securities Laws, provided that the foregoing shall not be deemed to impose on WTC any responsibility with respect to any such offer, sale or solicitation by any other party hereto.

 

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

 

5.2.4        Withholding Taxes.  WTC shall indemnify (on an after-tax basis) and hold harmless Owner against any United States withholding taxes (and related interest, penalties and additions to tax) as a result of the failure by WTC to withhold on payments to any Note Holder if such Note Holder failed to provide to Mortgagee necessary certificates or forms to substantiate the right to exemption from such withholding tax.  Any amount payable hereunder shall be paid within 30 days after receipt by WTC of a written demand therefor.

 

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

 

5.3.1        Withholding Taxes.  Such Note Holder (if it is a Non-U.S. Person) agrees to indemnify (on an after-tax basis) and hold harmless Owner and Mortgagee against any United States withholding taxes (and related interest, penalties and additions to tax) as a result of the failure to provide Mortgagee necessary certificates or forms to substantiate the right to exemption from, or reduction of, such withholding taxes or as a result of the inaccuracy or invalidity of any certificate or form provided by such Note Holder to Mortgagee in connection with such withholding taxes.  Any amount payable hereunder shall be paid within 30 days after receipt by a Note Holder of a written demand therefor.

 

5.3.2        Transfer; Compliance.

 

(a)           Such Note Holder will (i) not transfer any Equipment Note or interest therein in violation of the Securities Act or applicable state or foreign securities Law; provided, that the foregoing provisions of this section shall not be deemed to impose on such Note Holder any responsibility with respect to any such offer, sale or solicitation by any other party hereto,

 

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and (ii) perform and comply with the obligations specified to be imposed on it (as a Note Holder) under each of the Trust Indenture and the form of Equipment Note set forth in the Trust Indenture.

 

(b)           Except for the transfer of the interests of each Pass Through Trustee in the Equipment Notes to the trustee of the Related Trust (as defined in each Pass Through Trust Agreement) in accordance with the Pass Through Trust Agreement, each Note Holder will not sell, assign, convey, exchange or otherwise transfer any Equipment Note or any interest in, or represented by, any Equipment Note (it being understood that this provision is not applicable to the Pass Through Certificates) unless the proposed transferee thereof first provides Owner with both of the following:

 

(i)            a written representation and covenant that either (a) no portion of the funds it uses to purchase, acquire and hold such Equipment Note or interest directly or indirectly constitutes, or may be deemed under the Code or ERISA or any rulings, regulations or court decisions thereunder to constitute, the assets of any Plan or (b) the transfer, and subsequent holding, of such Equipment Note or interest shall not involve or give rise to a transaction that constitutes a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code involving Owner, a Pass Through Trustee, the Subordination Agent or the proposed transferee (other than a transaction that is exempted from the prohibitions of such sections by applicable provisions of ERISA or the Code or administrative exemptions or regulations issued thereunder); and

 

(ii)           a written covenant that it will not transfer any Equipment Note or any interest in, or represented by, any Equipment Note unless the subsequent transferee also makes the representation described in clause (i) above and agrees to comply with Section 5.3.2(a) and this clause (ii).

 

5.4           Agreements.

 

5.4.1        Quiet Enjoyment.  Each Pass Through Trustee, Subordination Agent, each Note Holder and Mortgagee agrees as to itself with Owner that, so long as no Event of Default shall have occurred and be continuing, such Person shall not (and shall not permit any Affiliate or other Person claiming by, through or under it to) interfere with Owner’s (or any Permitted Lessee’s) rights in accordance with the Trust Indenture to the quiet enjoyment, possession and use of the Aircraft.

 

5.4.2        Consents.  Each Pass Through Trustee, Subordination Agent and Mortgagee covenants and agrees, for the benefit of Owner, that it shall not unreasonably withhold its consent to any consent or approval requested of it or of Mortgagee under the terms of any of the Operative Agreements which by its terms is not to be unreasonably withheld.

 

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

 

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

 

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

 

5.4.4        Extent of Interest of Note Holders.  A Note Holder shall not, as such, have any further interest in, or other right with respect to, the Collateral when and if the principal and Break Amount, if any, of and interest on the Equipment Note held by such Holder, and all other sums, then due and payable to such Holder hereunder and under any other Operative Agreement, shall have been paid in full.

 

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

 

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

 

(i)            each of the following requirements is satisfied:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 6.              Confidentiality.  Owner, Note Holders and Mortgagee shall keep the Participation Agreement and Annex B to the Trust Indenture confidential and shall not disclose, or cause to be disclosed, the same to any Person, except (A) to prospective and permitted transferees of Owner’s, a Note Holder’s, a Liquidity Provider’s, a Pass Through Trustee’s, the Policy Provider’s, Mortgagee’s or other Indenture Indemnitee’s interest or their respective counsel or special counsel, independent insurance brokers, auditors, or other agents who agree to hold such information confidential, (B) Owner’s, a Note Holder’s, a Liquidity Provider’s, a Pass Through Trustee’s, the Policy Provider’s, Mortgagee’s or other Indenture Indemnitee’s counsel

 

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or special counsel, independent insurance brokers, auditors, or other agents, Affiliates or investors who agree to hold such information confidential, (C) as may be required by any statute, court or administrative order or decree, legal process or governmental ruling or regulation, including those of any applicable insurance regulatory bodies (including, without limitation, the National Association of Insurance Commissioners), federal or state banking examiners, Internal Revenue Service auditors or any stock exchange, (D) with respect to a Note Holder, the Policy Provider or any Pass Through Trustee, to a nationally recognized rating agency for the purpose of obtaining a rating on the Equipment Notes or the Pass Through Trust Certificates or to support an NAIC rating for the Equipment Notes or (E) such other Persons as are reasonably deemed necessary by the disclosing party in order to protect the interests of such party or for the purposes of enforcing such documents by such party; provided, that any and all disclosures permitted by clauses (C), (D) or (E) above shall be made only to the extent necessary to meet the specific requirements or needs of the Persons making such disclosures.

 

Section 7.              Indemnification and Expenses.

 

7.1           General Indemnity.

 

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

 

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

 

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

 

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

 

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

 

7.1.4        Notice and Contest.  If a claim is made against an Indemnitee involving one or more Expenses and such Indemnitee has notice thereof, such Indemnitee shall promptly after receiving such notice give notice of such claim to Owner; provided that the failure to provide such notice shall not release Owner from any of its obligations to indemnify hereunder except to the extent that such failure results in an additional Expense to Owner (in which case Owner shall not be responsible for such additional Expense) or Owner is prejudiced as a result of the failure to give such notice in a timely fashion, and no payment by Owner to an Indemnitee pursuant to this Section 7.1 shall be deemed to constitute a waiver or release of any right or remedy which Owner may have against such Indemnitee for any actual damages as a result of the failure by such Indemnitee to give Owner such notice.  Owner shall be entitled, at its sole cost and expense, acting through counsel reasonably acceptable to the respective Indemnitee, so long as Owner has acknowledged in writing its responsibility for such Expense hereunder (provided that such acknowledgment does not apply if such Expense is covered by Section 7.1.2 or if the decision of a court or arbitrator provides that Owner is not liable hereunder), (A) in any judicial or administrative proceeding that involves solely a claim for one or more Expenses, to assume responsibility for and control thereof, (B) in any judicial or administrative proceeding involving a claim for one or more Expenses and other claims related or unrelated to the transactions contemplated by the Operative Agreements, to assume responsibility for and control of such claim for Expenses to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its reasonable efforts to obtain such severance), and (C) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at Owner’s sole expense, to participate therein.  An Indemnitee may participate at its own expense and with its own counsel in any judicial proceeding controlled by Owner pursuant to the preceding provisions.  Notwithstanding any of the foregoing, Owner shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings if any Event of Default shall have occurred and be continuing, if such proceedings will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft or the Collateral, unless Owner shall have posted a bond or other security reasonably satisfactory to the relevant Indemnitee with respect to such risk or if such proceedings could entail any risk of criminal liability being imposed on such Indemnitee.

 

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

 

20



 

the extent permitted by this Section 7.1.  Such Indemnitee shall not enter into a settlement or other compromise with respect to any Expense without the prior written consent of Owner, which consent shall not be unreasonably withheld or delayed, unless such Indemnitee waives its right to be indemnified with respect to such Expense under this Section 7.1.

 

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

 

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

 

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

 

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

 

7.2           Transaction Costs.

 

7.2.1        Invoices and Payment.  Each of the Mortgagee, the Pass Through Trustees, and the Subordination Agent shall promptly submit to Owner for its prompt approval (which shall not be unreasonably withheld) copies of invoices in reasonable detail of the Transaction Expenses for which it is responsible for providing information as they are received (but in no event later than the 120th day after the Closing Date).  If so submitted and approved, the Owner agrees promptly, but in any event no later than the 135th day after the Closing Date, to pay Transaction Expenses.

 

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

 

Section 8.              Assignment or Transfer of Interests.

 

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

 

21



 

participations in all or any portion of the Equipment Notes and/or all or any portion of its beneficial interest in its Equipment Notes and the Collateral to any person (it being understood that the sale or issuance of Pass Through Certificates by a Pass Through Trustee shall not be considered a Transfer or participation); provided, that any participant in any such participations shall not have any direct rights under the Operative Agreements or any Lien on all or any part of the Aircraft or Collateral and Owner shall not have any increased liability or obligations as a result of any such participation.  In the case of any such Transfer, the Transferee, by acceptance of Equipment Notes in connection with such Transfer, shall be deemed to be bound by all of the covenants of Note Holders contained in the Operative Agreements.

 

8.2           Effect of Transfer.  Upon any Transfer in accordance with Section 8.1 (other than any Transfer by any Note Holder, to the extent it only grants participations in Equipment Notes or in its beneficial interest therein), Transferee shall be deemed a “Note Holder,” for all purposes of this Agreement and the other Operative Agreements and, and each reference herein to Note Holder, shall thereafter be deemed a reference to such Transferee for all purposes, and the transferring Note Holder shall be released from all of its liabilities and obligations under this Agreement and any other Operative Agreements to the extent such liabilities and obligations arise after such Transfer and, in each case, to the extent such liabilities and obligations are assumed by the Transferee; provided, that such transferring Note Holder (and its respective Affiliates, successors, assigns, agents, servants, representatives, directors and officers) will continue to have the benefit of any rights or indemnities under any Operative Agreement vested or relating to circumstances, conditions, acts or events prior to such Transfer.

 

Section 9.              Section 1110.  It is the intention of each of Owner, the Note Holders (such intention being evidenced by each of their acceptance of an Equipment Note) and Mortgagee that Mortgagee shall be entitled to the benefits of Section 1110 in the event of a case under Chapter 11 of the Bankruptcy Code in which Owner is a debtor.

 

Section 10.            Change of Citizenship.

 

10.1         Generally.  Without prejudice to the representations, warranties or covenants regarding the status of any party hereto as a Citizen of the United States, each of Owner, WTC and Mortgagee agrees that it will, immediately upon obtaining knowledge of any facts that would cast doubt upon its continuing status as a Citizen of the United States and promptly upon public disclosure of negotiations in respect of any transaction which would or might adversely affect such status, notify in writing all parties hereto of all relevant matters in connection therewith.

 

10.2         Mortgagee.  Upon WTC giving any notice in accordance with Section 10.1, Mortgagee shall (if and so long as such citizenship is necessary under the Act as in effect at such time or, if it is not necessary, if and so long as Mortgagee’s citizenship could have any adverse effect on Owner or any Note Holder), subject to Section 9.02 of the Trust Indenture, resign (subject to the appointment of a replacement) as Mortgagee promptly upon its ceasing to be such a citizen.

 

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Section 11.            Miscellaneous.

 

11.1         Amendments.  No provision of this Agreement may be amended, supplemented, waived, modified, discharged, terminated or otherwise varied orally, but only by an instrument in writing that specifically identifies the provision of this Agreement that it purports to amend, supplement, waive, modify, discharge, terminate or otherwise vary and is signed by the party against which the enforcement of the amendment, supplement, waiver, modification, discharge, termination or variance is sought.  Each such amendment, supplement, waiver, modification, discharge, termination or variance shall be effective only in the specific instance and for the specific purpose for which it is given.  No provision of this Agreement shall be varied or contradicted by oral communication, course of dealing or performance or other manner not set forth in an agreement, document or instrument in writing and signed by the party against which enforcement of the same is sought.

 

11.2         Severability.  If any provision hereof shall be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the extent permitted by Law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and (b) such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.  If, however, any Law pursuant to which such provisions are held invalid, illegal or unenforceable may be waived, such Law is hereby waived by the parties hereto to the full extent permitted, to the end that this Agreement shall be deemed to be a valid and binding agreement in all respects, enforceable in accordance with its terms.

 

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

 

11.4         Counterparts.  This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts (or upon separate signature pages bound together into one or more counterparts), each of which when so executed shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.

 

11.5         No Waiver.  No failure on the part of any party hereto to exercise, and no delay by any party hereto in exercising, any of its respective rights, powers, remedies or privileges under this Agreement or provided at Law, in equity or otherwise shall impair, prejudice or constitute a waiver of any such right, power, remedy or privilege or be construed as a waiver of any breach hereof or default hereunder or as an acquiescence therein nor shall any single or partial exercise of any such right, power, remedy or privilege preclude any other or further exercise thereof by it or the exercise of any other right, power, remedy or privilege by it.  No notice to or demand on any party hereto in any case shall, unless otherwise required under this Agreement, entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any party hereto to any other or further action in any circumstances without notice or demand.

 

11.6         Notices.  Unless otherwise expressly permitted by the terms hereof, all notices, requests, demands, authorizations, directions, consents, waivers and other communications required or permitted to be made, given, furnished or filed hereunder shall be in writing (it being

 

23



 

understood that the specification of a writing in certain instances and not in others does not imply an intention that a writing is not required as to the latter), shall refer specifically to this Agreement or other applicable Operative Agreement, and shall be personally delivered, sent by facsimile or telecommunication transmission (which in either case provides written confirmation to the sender of its delivery), sent by registered mail or certified mail, return receipt requested, postage prepaid, or sent by overnight courier service, in each case to the respective address or facsimile number set forth for such party in Schedule 1, or to such other address, facsimile or other number as each party hereto may hereafter specify by notice to the other parties hereto. Each such notice, request, demand, authorization, direction, consent, waiver or other communication shall be effective when received or, if made, given, furnished or filed by facsimile or telecommunication transmission, when received unless received outside of business hours, in which case on the next open of business on a Business Day.

 

11.7         Governing Law; Submission to Jurisdiction; Venue.

 

(a)           THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.  THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.

 

(b)           EACH PARTY HERETO HEREBY IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTER RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

 

(c)           EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS AND AGREES TO THE SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE ADDRESS SET FORTH PURSUANT TO SECTION 11.6.  EACH PARTY HERETO HEREBY AGREES THAT SERVICE UPON IT, OR ANY OF ITS AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS SECTION 11.7(c), SHALL CONSTITUTE VALID AND EFFECTIVE PERSONAL SERVICE UPON SUCH PARTY, AND EACH PARTY HERETO HEREBY AGREES THAT THE FAILURE OF ANY OF ITS AGENTS TO GIVE ANY NOTICE OF SUCH SERVICE TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT IN ANY WAY THE VALIDITY OF SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED IN ANY ACTION OR PROCEEDING BASED THEREON.

 

(d)           EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM,

 

24



 

THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS.

 

(e)           EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

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

 

11.9         Entire Agreement.  This Agreement, together with the other Operative Agreements, on and as of the date hereof, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and all prior or contemporaneous understandings or agreements, whether written or oral, among any of the parties hereto with respect to such subject matter are hereby superseded in their entireties.

 

11.10       Further Assurances.  Each party hereto shall execute, acknowledge and deliver or shall cause to be executed, acknowledged and delivered, all such further agreements, instruments, certificates or documents, and shall do and cause to be done such further acts and things, in any case, as any other party hereto shall reasonably request in connection with the administration of, or to carry out more effectively the purposes of, or to better assure and confirm into such other party the rights and benefits to be provided under this Agreement and the other Operative Agreements.

 

[This space intentionally left blank]

 

25



 

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

 

 

JETBLUE AIRWAYS CORPORATION,

 

Owner

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as expressly provided herein, but solely as Mortgagee

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as expressly provided herein, but solely as Pass Through Trustee under the Pass Through Trust Agreement for the JetBlue Airways Pass Through Trust, 2004-2G-1

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as expressly provided herein, but solely as Pass Through Trustee under the Pass Through Trust Agreement for the JetBlue Airways Pass Through Trust, 2004-2G-2

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

26



 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as expressly provided herein, but solely as Pass Through Trustee under the Pass Through Trust Agreement for the JetBlue Airways Pass Through Trust, 2004-2C

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

WILMINGTON TRUST COMPANY,

 

not in its individual capacity, except as expressly provided herein, but solely as Subordination Agent

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

27



 

SCHEDULE 1
TO
PARTICIPATION AGREEMENT


ACCOUNTS; ADDRESSES

Address For Notices

 

JETBLUE AIRWAYS CORPORATION

JetBlue Airways Corporation
118-29 Queens Blvd.
Forest Hills, NY 11375
Attention: Vice President – Corporate Finance
Facsimile: (718) 709-3639

 

 

AVSA S.A.R.L.

AVSA S.A.R.L.
2, rond-point Maurice Bellonte
31700 Blagnac, France

Account Details:
Calyon, New York Branch
for the account of AVSA S.A.R.L.
ABA No. 026008073
Account No. 0118 363 000 100
Attention: William McIllvain
Ref: JetBlue/MSN [MSN]

 

 

WILMINGTON TRUST COMPANY, AS MORTGAGEE

Wilmington Trust Company
One Rodney Square
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140 Telephone: (302) 636-6000

 

 

 

Account Details:

 

 

WILMINGTON TRUST COMPANY,
AS SUBORDINATION AGENT

Wilmington Trust Company
ABA No. 031100092
Account No. [       ]
Ref. N[XXX]JB

 

1



 

 

 

WILMINGTON TRUST COMPANY,
AS PASS THROUGH TRUSTEE FOR THE
2004-2G-1 PASS THROUGH TRUST

Wilmington Trust Company
One Rodney Square
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
Telephone: (302) 636-6000

 

 

WILMINGTON TRUST COMPANY,
AS PASS THROUGH TRUSTEE FOR THE
2004-2G-2 PASS THROUGH TRUST

Wilmington Trust Company
One Rodney Square
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
Telephone: (302) 636-6000

 

 

WILMINGTON TRUST COMPANY,
AS PASS THROUGH TRUSTEE FOR THE
2004-2C PASS THROUGH TRUST

Wilmington Trust Company
One Rodney Square
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
Telephone: (302) 636-6000

 

2



 

SCHEDULE 2
TO
PARTICIPATION AGREEMENT

 

LOANS

 

Pass Through
Trustee

 

Series of
Equipment Notes

 

Dollar Amount
of Loan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1



SCHEDULE 3
TO
PARTICIPATION AGREEMENT

 

CERTAIN TERMS

 

Minimum Liability Insurance Amount:

$300,000,000

 

1



 

SCHEDULE 4
TO
PARTICIPATION AGREEMENT

 

PERMITTED COUNTRIES

 

Argentina

Australia

Austria

Bahamas

Belgium

Brazil

Canada

Chile

Cyprus

Czech Republic

Denmark

Egypt

Ecuador

France

Germany

Greece

Hungary

Iceland

India

Indonesia

Ireland

Italy

Jamaica

Japan

Jordan

Kuwait

Luxembourg

Malaysia

Malta

Mexico

Morocco

Netherlands

New Zealand

Norway

Oman

Paraguay

People’s Republic of China

Philippines

Poland

Portugal

Qatar

Republic of China (Taiwan)

Singapore

Slovakia

South Africa

South Korea

Spain

Sri Lanka

Sweden

Switzerland

Thailand

Tobago

Trinidad

Tunisia

Turkey

United Kingdom

Uruguay

Venezuela

 

1



 

 

EXHIBIT A

 

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

 

To the Persons Listed on Schedule I
Attached Hereto

 

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

 

Gentlemen:

 

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

 

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

 

(i)            Participation Agreement;

 

(ii)           Trust Indenture;

 

(iii)          Trust Indenture Supplement No. 1;

 

(iv)          Consent and Agreement;

 

(v)           Engine Consent and Agreement;

 

(vi)          Forms of the Equipment Notes; and

 

(vii)         Bills of Sale.

 

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

 

1



 

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

 

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

 

2



 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Very truly yours,

 

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SCHEDULE I

 

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

 

Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

Citibank, N.A., as Above-Cap Liquidity Provider

 

MBIA Insurance Corporation, as Policy Provider

 

Moody’s Investors Service, Inc.

 

Morgan Stanley & Co. Incorporated, individually and as representative for Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc.

 

Standard & Poor’s Ratings Services

 

JetBlue Airways Corporation

 

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EXHIBIT B

 

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

 

To the Persons Listed on
Schedule I Hereto

 

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

 

Ladies and Gentlemen:

 

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

 

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

 

(i)            an execution copy of the Participation Agreement;

 

(ii)           an execution copy of the Trust Indenture;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(a)           The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; and has the corporate power and authority to

 

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enter into and perform its obligations under the Participation Agreement, the Trust Indenture, the Trust Indenture Supplement No. 1 and the Equipment Notes (collectively, the “Company Documents”).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Very truly yours,

 

 

 

 

 

James G. Hnat

 

Vice President and General Counsel

 

JetBlue Airways Corporation

 

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SCHEDULE I

 

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

 

Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

Citibank, N.A., as Above-Cap Liquidity Provider

 

MBIA Insurance Corporation, as Policy Provider

 

Moody’s Investors Service, Inc.

 

Morgan Stanley & Co. Incorporated, individually and as representative for Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc.

 

Standard & Poor’s Ratings Services

 

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EXHIBIT C

 

[FORM OF FAA COUNSEL OPINION]

 

                             , [2005]

 

To the Addressees on
Schedule I Attached Hereto:

 

Re:          JetBlue Airways Corporation;
Our File Number: 

 

Ladies & Gentlemen:

 

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

 

AIRCRAFT

 

Manufacturer

 

Model

 

Serial
Number

 

U.S. Registration
Number

 

 

 

 

 

 

 

 

 

Airbus

 

A320-232

 

[MSN]

 

[N        JB]

 

 

hereafter referred to as the “Aircraft”; and

 

ENGINES

 

Manufacturer

 

Model

 

Serial Number

 

 

 

 

 

 

 

International Aero Engines

 

[           ]

 

[MSN]

 

International Aero Engines

 

[           ]

 

[MSN]

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Very truly yours,

 

DEBEE GILCHRIST

 

 

Jack P. Gilchrist

 

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SCHEDULE I
to Opinion of                            ,     

 

Re:          JetBlue Airways Corporation;
One (1) Airbus A320-232 Aircraft, Serial
Number [MSN], U.S. Registration Number
[N        JB]; and Two (2) International Aero
Engines [            ] Engines, Serial Numbers
[MSN] and [MSN];
Our File Number:                   

 

ADDRESSEES

 

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

 

JetBlue Airways Corporation

 

Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

Citibank, N.A., as above-cap liquidity provider

 

MBIA Insurance Corporation, as Policy Provider

 

Moody’s Investors Service, Inc.

 

Morgan Stanley & Co. Incorporated, individually and as representative for Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc.

 

Standard & Poor’s Ratings Services

 

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EXHIBIT D

 

[FORM OF WTC COUNSEL’S OPINION]

 

[date]

 

To Each of the Persons
Listed on Schedule A
Attached Hereto

 

Re:          JetBlue Airways Financing of One Airbus A320-232
Aircraft Bearing Manufacturer’s Serial Number [MSN]

 

Ladies and Gentlemen:

 

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

 

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

 

(a)           the Participation Agreement;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

3



 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Very truly yours,

 

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SCHEDULE A

 

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

 

Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

Citibank, N.A., as Above-Cap Liquidity Provider

 

MBIA Insurance Corporation, as Policy Provider

 

Moody’s Investors Service, Inc.

 

Morgan Stanley & Co. Incorporated, individually and as representative for Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc.

 

Standard & Poor’s Ratings Services

 

JetBlue Airways Corporation

 

6



 

EXHIBIT E

 

[FORM OF OPINION OF SPECIAL FRENCH COUNSEL]

 

To:          The Opinion Addressees referred to in Schedule hereof

 

Re:          Airbus Model A320-232 Aircraft
Manufacturer’s Serial No.           
US Registration Number NXXXJB (the “Aircraft”)

 

Dear Sirs,

 

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

 

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

 

3.             We have examined:

 

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

 

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

 

(c)           a copy of a consent and agreement of Airbus S.A.S. (legal successor of Airbus S.N.C., formerly known as Airbus G.I.E. and Airbus Industrie E.I.E. (“Airbus”) to (i) the granting clause of the Trust Indenture and (ii) the Pledge Agreement dated [                         ] (the “Airbus Consent and Agreement”); and

 

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

 

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

 

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

 

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

 

We have also examined :

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(ii)           the genuineness of all signatures;

 

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

 

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

 

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

 

(vi)          the merger of Airbus S.N.C. into Airbus S.A.S. was duly completed in accordance with and is valid under French law.

 

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

 

(i)            Airbus is a company duly incorporated and validly existing in France as a société par actions simplifiée and has the power and authority to carry on its business as now conducted;

 

2



 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(ix)           Under the laws of the French Republic, Airbus and AVSA are subject to private commercial law and to suit, and neither Airbus nor AVSA, nor their respective properties

 

3



 

have any immunity from the jurisdiction of any court or any legal process (whether through service of notice, attachment prior to notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise), except that, with respect to Airbus:

 

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

 

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

 

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

 

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

 

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

 

(c)           in order to ensure the validity as against third parties of the pledge (“nantissement”) created by the Pledge Agreement in accordance with the provisions of Article 2075 of the French Code civil, it is necessary for the signed French version of the Pledge Agreement to be registered with the French tax administration, involving payment of a stamp duty of a nominal amount. In addition the nantissement created by the Pledge Agreement will need to be served on each of the obligors by process server (“huissier”), in accordance with the provisions of Article 2075 of the French Code civil.  We have been instructed to assist in carrying out such formalities which we intend to do upon receipt of duly executed originals of the Pledge Agreement and we anticipate that there will be no difficulty in accomplishing these formalities;

 

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

 

(e)           pledges over non-monetary claims are unusual under French law. In principle, pledges over claims of this type should be effective against Airbus, AVSA and third

 

4



 

parties but in the absence of case law, there is a lack of certainty about the pledge being effective;

 

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

 

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

 

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

 

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

 

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

 

(k)           our opinion as to the enforceability of the Documents relates only to their enforceability in France in circumstances where the competent French court has and accepts jurisdiction.  The term “enforceability” refers to the legal character of the obligations assumed by the parties under the documents, i.e. that they are of a character which French law enforces or recognizes.  It does not mean that the Documents will be enforced in all circumstances or in foreign jurisdictions or by or against third parties or that any particular remedy will be available;

 

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

 

We are qualified as French Avocats.

 

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

 

Yours faithfully,

 

Clifford Chance

 

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Schedule

 

Opinion Addressees

 

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

 

Landesbank Baden-Württemberg, as Primary Liquidity Provider

 

Citibank, N.A., as Above-Cap Liquidity Provider

 

MBIA Insurance Corporation, as Policy Provider

 

Moody’s Investors Service, Inc.

 

Morgan Stanley & Co. Incorporated, individually and as representative for Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and HSBC Securities (USA) Inc.

 

Standard & Poor’s Ratings Services

 

JetBlue Airways Corporation

 

6


EX-23.1 30 a04-11378_4ex23d1.htm EX-23.1

Exhibit 23.1

 

Consent of Aircraft Information Services, Inc.

 

We refer to the Prospectus Supplement dated November 9, 2004 of JetBlue Airways Corporation related to the offer and sale of $498,237,000 aggregate face amount of Pass Through Trust Certificates, Series 2004-2 (the “Prospectus”).  We hereby consent to the inclusion of our report dated November 2, 2004 in the Prospectus and to the reference to our firm’s names in the Prospectus under the caption “Experts.”

 

Date:  November 15, 2004

Aircraft Information Services, Inc.

 

 

 

 

 

 

 

By:

/s/ John D. McNicol

 

 

Name:

John D. McNicol

 

 

Title:

Vice President Appraisals & Forecasts

 


EX-23.2 31 a04-11378_4ex23d2.htm EX-23.2

Exhibit 23.2

 

Consent of AvSOLUTIONS, Inc.

 

We refer to the Prospectus Supplement dated November 9, 2004 of JetBlue Airways Corporation related to the offer and sale of $498,237,000 aggregate face amount of Pass Through Trust Certificates, Series 2004-2 (the “Prospectus”).  We hereby consent to the inclusion of our report dated November 1, 2004 in the Prospectus and to the reference to our firm’s names in the Prospectus under the caption “Experts.”

 

Date:  November 15, 2004

AvSOLUTIONS, Inc.

 

 

 

 

 

 

 

By:

/s/ Scott E. Daniels

 

 

 

Name:

Scott E. Daniels

 

 

Title:

Vice President, Asset Management

 


EX-23.3 32 a04-11378_4ex23d3.htm EX-23.3

Exhibit 23.3

 

Consent of Morten Beyer & Agnew, Inc.

 

We refer to the Prospectus Supplement dated November 9, 2004 of JetBlue Airways Corporation related to the offer and sale of $498,237,000 aggregate face amount of Pass Through Trust Certificates, Series 2004-2 (the “Prospectus”).  We hereby consent to the inclusion of our report dated November 1, 2004 in the Prospectus and to the reference to our firm’s names in the Prospectus under the caption “Experts.”

 

Date:  November 15, 2004

Morten Beyer & Agnew, Inc.

 

 

 

 

 

 

 

By:

/s/ Bryson P. Monteleone

 

 

 

Name:

Bryson P. Monteleone

 

 

Title:

Vice President

 


EX-99.1 33 a04-11378_4ex99d1.htm EX-99.1

Exhibit 99.1

Schedule 1

A separate Pass Through Trust Agreement substantially identical in all material respects to the Pass Through Trust Agreement filed as Exhibit 4.4 (the form of which agreement with respect to each pass through trust was filed as Exhibit 4.3 to Amendment No. 1 to Registration Statement on Form S-3 (Registration Statement No. 333-119549) on November 2, 2004) has been entered into with respect to each of JetBlue Airways Pass Through Trust, Series 2004-2G-2-O Pass Through Certificates and JetBlue Airways Pass Through Trust, Series 2004-2C-O Pass Through Certificates.  Those Pass Through Trust Agreements differ from the Pass Through Trust Agreement filed as Exhibit 4.4 herewith as set forth below:

1.             Pass Through Trust Agreement, dated as of November 15, 2004, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways Corporation Pass Through Trust, Series 2004-2G-2-O and the issuance of Three-Month LIBOR plus 0.450% JetBlue Airways Pass Through Trust, Series 2004-2G-2-O Pass Through Certificates

(a)           Conforming changes have been made to reflect the formation of the appropriate trust and the issuance of the appropriate series of pass through trust certificates;

(b)           Section 1.01 defines “Final Legal Distribution Date” as May 15, 2018; and

(c)           Section 3.01(b) limits the aggregate Fractional Undivided Interest of Certificates to $185,418,000.

2.             Pass Through Trust Agreement, dated as of November 15, 2004, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways Corporation Pass Through Trust, Series 2004-2C-O and the issuance of Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through Trust, Series 2004-2C-O Pass Through Certificates

(a)           Conforming changes have been made to reflect the formation of the appropriate trust and the issuance of the appropriate series of pass through trust certificates;

(b)           Section 1.01 defines “Final Legal Distribution Date” as May 15, 2010;

(c)           Section 1.01 defines “PTC Event of Default” as

any failure to pay within ten Business Days of the due date thereof:  (i) the outstanding Pool Balance on the Final Legal Distribution Date or (ii) interest due on the Certificates on any Distribution Date (unless the Subordination Agent shall have made an Interest Drawing or Drawings (as defined in the Intercreditor Agreement) or a withdrawal or withdrawals pursuant to Section 3.6(f) of the Intercreditor Agreement with respect thereto in an aggregate amount sufficient to pay such interest and shall have distributed such amount to the Trustee).

(d)           Section 1.01 defines “Scheduled Payment” so that it deletes from the definition of Scheduled Payment “any payment of interest on or principal of the Certificates with funds drawn under the Policy”;

 



 

(e)           Section 1.01 defines “Trust Property” so that it excludes references to the Policy;

(f)            Section 2.01(a)(i), relating to the issuance of pass through trust certificates, does not direct the Trustee to execute and deliver the Policy Provider Agreement;

(g)           Section 3.01(b) limits the aggregate Fractional Undivided Interest of Certificates to $136,066,000;

(h)           Section 3.11, relating to payments and distributions made to Certificateholders, provides that a Certificateholder “will not have any recourse to the Company, the Trustee, the Loan Trustees or the Liquidity Providers, except as otherwise expressly provided herein or in the Intercreditor Agreement”;

(i)            Section 4.03(a)(i) has been changed to delete the reference to the Policy Provider;

(j)            Section 6.01(b) provides, in the first full paragraph following subsection 6.01(b)(ii), that:

The purchase price with respect to the Class G-1 Certificates and the Class G-2 Certificates shall be the amounts set forth in Section 6.01(b) of the Other Pass Through Trust Agreements.  Such purchase shall be subject to the terms set forth in Section 6.01(b) of the Other Pass Through Trust Agreements.

(k)           Sections 9.01 and 9.02 have been changed to delete references to the Policy and the Policy Provider Agreement;

(l)            Section 9.02(6) has been deleted; and

(m)          Section 10.01 has been changed to delete the reference to “the Policy Provider” at the end of the first sentence and the language “Policy Provider or if a Policy Provider Default has occurred and is continuing,” from the beginning of the second sentence.  Part (ii) of the third sentence of Section 10.01 has been changed to delete references to the Class G-2 Trustee, the Class G-2 Certificateholders and the Class G-2 Trust and reads as follows:

(ii) as Controlling Party, the Trustee shall vote as directed in such Certificateholder Direction by the Certificateholders evidencing a Fractional Undivided Interest aggregating not less than a majority in interest in the Trust.

(n)           Schedule 1 of Exhibit B, Form of Assignment and Assumption Agreement, has been changed to remove the Policy and the Policy Provider Agreement as part of the list of assigned documents.

 


EX-99.2 34 a04-11378_4ex99d2.htm EX-99.2

Exhibit 99.2

Schedule 2

A separate ISDA Master Agreement substantially identical in all material respects to the ISDA Master Agreement filed as Exhibit 4.14 has been entered into with respect to the above-cap liquidity facilities provided on behalf of each of the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O and the JetBlue Airways Corporation Pass Through Trust 2004-2C-O.  Those ISDA Master Agreements differ from the ISDA Master Agreement filed as Exhibit 4.14 as set forth below:

1.             ISDA Master Agreement, dated as November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O

Conforming changes have been made to reflect Wilmington Trust Company acting as Subordination Agent for the appropriate trust.

2.             ISDA Master Agreement, dated as November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2C-O

Conforming changes have been made to reflect Wilmington Trust Company acting as Subordination Agent for the appropriate trust.

 


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