Exhibit 4.10
EXECUTION COPY
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INTERCREDITOR AGREEMENT
Dated as of
November 14, 2006
AMONG
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee under the
JetBlue Airways (Spare Parts) G-1 Pass Through Trust
and
JetBlue Airways (Spare Parts) B-1 Pass Through Trust
And under
Various other JetBlue Airways (Spare Parts) Pass Through Trusts
Which may be created from time to time hereafter,
The Initial Primary Liquidity Provider, Initial Above-Cap Liquidity
Provider
and Initial Policy Provider executing this Agreement as such
The Additional Primary Liquidity Provider(s), Additional Above-Cap
Liquidity
Provider(s) and Additional Policy Provider(s), if any, which may
from time to
time hereafter Become parties hereto as herein provided
AND
WILMINGTON TRUST COMPANY,
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent and Trustee
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS............................................................................................1
SECTION 1.1.
Definitions...............................................................................1
ARTICLE II
TRUST ACCOUNTS; CONTROLLING
PARTY....................................................................23
SECTION 2.1.
Agreement to Terms of Subordination; Payments from Monies Received
Only..................23
SECTION 2.2.
Trust
Accounts...........................................................................24
SECTION 2.3.
Deposits to the Collection Account and Special Payments
Account..........................25
SECTION 2.4.
Distributions of Special
Payments........................................................26
SECTION 2.5.
Designated
Representatives...............................................................26
SECTION 2.6.
Controlling
Party........................................................................27
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION
OF AMOUNTS RECEIVED..........................................29
SECTION 3.1.
Written Notice of
Distribution...........................................................29
SECTION 3.2.
Distribution of Amounts on Deposit in the Collection
Account.............................32
SECTION 3.3.
Other
Payments...........................................................................35
SECTION 3.4.
Payments to the Trustees, the Primary Liquidity Provider and Policy
Provider.............36
SECTION 3.5.
Liquidity
Facilities.....................................................................36
SECTION 3.6.
The
Policy...............................................................................47
ARTICLE IV
EXERCISE OF
REMEDIES.................................................................................52
SECTION 4.1.
Directions from the Controlling
Party....................................................52
SECTION 4.2.
Remedies
Cumulative......................................................................53
SECTION 4.3.
Discontinuance of
Proceedings............................................................54
SECTION 4.4.
Right of Certificateholders, Liquidity Provider and the Policy
Provider to
Receive Payments Not to Be
Impaired..................................................54
SECTION 4.5.
Undertaking for
Costs....................................................................54
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES,
ETC........................................54
SECTION 5.1.
Notice of Indenture Default or Triggering
Event..........................................54
SECTION 5.2.
Indemnification..........................................................................56
SECTION 5.3.
No Duties Except as Specified in Intercreditor
Agreement.................................56
SECTION 5.4.
Notice from the Liquidity Providers and
Trustees.........................................56
ARTICLE VI
THE SUBORDINATION
AGENT..............................................................................56
SECTION 6.1.
Authorization; Acceptance of Trusts and
Duties...........................................56
SECTION 6.2.
Absence of
Duties........................................................................57
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SECTION 6.3.
No Representations or Warranties as to
Documents.........................................57
SECTION 6.4.
No Segregation of Monies; No
Interest....................................................57
SECTION 6.5.
Reliance; Agents; Advice of
Counsel......................................................57
SECTION 6.6.
Capacity in Which
Acting.................................................................58
SECTION 6.7.
Compensation.............................................................................58
SECTION 6.8.
May Become
Certificateholder.............................................................58
SECTION 6.9.
Subordination Agent Required;
Eligibility................................................58
SECTION 6.10.
Money to Be Held in
Trust................................................................59
ARTICLE VII
INDEMNIFICATION OF SUBORDINATION
AGENT..............................................................59
SECTION 7.1.
Scope of
Indemnification.................................................................59
ARTICLE VIII
SUCCESSOR SUBORDINATION
AGENT......................................................................59
SECTION 8.1.
Replacement of Subordination Agent; Appointment of
Successor.............................59
ARTICLE IX
SUPPLEMENTS AND
AMENDMENTS...........................................................................60
SECTION 9.1.
Amendments, Waivers,
etc.................................................................60
SECTION 9.2.
Subordination Agent
Protected............................................................62
SECTION 9.3.
Effect of Supplemental
Agreements........................................................62
SECTION 9.4.
Notice to Rating
Agencies................................................................62
ARTICLE X
ADDITIONAL
CERTIFICATES...............................................................................63
SECTION 10.1
General..................................................................................63
SECTION 10.2
Conditions...............................................................................64
ARTICLE XI
MISCELLANEOUS........................................................................................65
SECTION 11.1.
Termination of Intercreditor
Agreement...................................................65
SECTION 11.2.
Intercreditor Agreement for Benefit of Trustees, Liquidity
Providers, the Policy
Provider and Subordination
Agent.....................................................65
SECTION 11.3.
Notices..................................................................................65
SECTION 11.4.
Severability.............................................................................66
SECTION 11.5.
No Oral Modifications or Continuing
Waivers..............................................66
SECTION 11.6.
Successors and
Assigns...................................................................66
SECTION 11.7.
Headings.................................................................................67
SECTION 11.8.
Counterpart
Form.........................................................................67
SECTION 11.9.
Subordination............................................................................67
SECTION 11.10. Governing
Law............................................................................68
SECTION 11.11. Submission to Jurisdiction; Waiver of Jury
Trial.........................................68
ii
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of November 14, 2006, among
WILMINGTON TRUST COMPANY, a Delaware banking corporation ("WTC"),
not in its
individual capacity but solely as Trustee of each of JetBlue
Airways (Spare
Parts) G-1 Pass Through Trust and JetBlue Airways (Spare Parts) B-1
Pass Through
Trust and of various JetBlue Airways (Spare Parts) Pass Through
Trusts which may
from time to time be created (each of the foregoing being a "Trust"
and,
collectively, the "Trusts"); the INITIAL PRIMARY LIQUIDITY
PROVIDER, INITIAL
ABOVE-CAP LIQUIDITY PROVIDER and INITIAL POLICY PROVIDER executing
this
Agreement as such; the ADDITIONAL PRIMARY LIQUIDITY PROVIDER(S),
ADDITIONAL
ABOVE-CAP LIQUIDITY PROVIDER(S) and ADDITIONAL POLICY PROVIDER(S),
if any, which
may from time to time hereafter become parties hereto as herein
provided; 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").
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. For all purposes of this Agreement,
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 words importing
the
plural include the singular and words importing the singular
include the
plural;
(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" means "including without limitation".
"Above-Cap Account" means, in respect of each Above-Cap Liquidity
Facility, a separate 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
such Above-Cap
Liquidity Facility pursuant to Section 3.5(a) shall be deposited.
"Above-Cap Collateral Account" means, in respect of each Above-Cap
Liquidity Facility, a separate 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
such Above-Cap Liquidity Facility pursuant to Section 3.5(c)(iv)
shall be
deposited.
"Above-Cap Liquidity Facility" means, (i) each of the Initial
Above-Cap Liquidity Facility and each Additional Above-Cap
Liquidity Facility
and (ii) from and after the replacement of any such Above-Cap
Liquidity
Facility, the applicable 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. "Above-Cap Liquidity Facilities"
has a
correlative meaning.
"Above-Cap Liquidity Provider" means, in respect of each Above-Cap
Liquidity Facility", the provider thereof. "Above-Cap Liquidity
Providers" has a
correlative meaning.
"Above-Cap Payment" has the meaning specified in Section 3.5(a).
"Above-Cap Withdrawal" has the meaning specified in Section 3.5(a).
"Acceleration" means, with respect to the amounts payable in
respect
of the Equipment Notes, such amounts becoming immediately due and
payable by
declaration or otherwise in accordance with the terms of the
Indenture, without
regard to whether the Mortgagee has the right to exercise any
remedies against
JetBlue as a result of such Acceleration. "Accelerate",
"Accelerated" and
"Accelerating" have meanings correlative to the foregoing.
"Accrued Class G Interest" has the meaning specified in Section
3.6(a).
"Additional Above-Cap Liquidity Facility", "Additional
Certificates", "Additional Equipment Notes", "Additional Liquidity
Facility",
"Additional Liquidity Facility Provider", "Additional Policy",
"Additional
Policy Provider" , "Additional Primary Liquidity Facility", "Junior
Additional
Certificates", "Junior Additional Equipment Notes", "Senior
Additional
Certificates" and "Senior Additional Equipment Notes" have the
meanings
specified in Section 10.1.
"Adjusted Fair Market Value" has the meaning specified in the
Indenture.
"Advance" means any Advance as defined in a 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" 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 the terms "controlling" and "controlled"
have
meanings correlative to the foregoing.
2
"applicable Above-Cap Liquidity Provider", "applicable Class",
"applicable Primary Liquidity Facility", "applicable Primary
Liquidity
Provider","applicable Policy" , "applicable Policy Provider" and
"applicable
Liquidity Facility" are defined in Section 2.1(c). The term
"applicable", when
used with respect to a Trust Account, drawing or utilization or
with regard to
the application of proceeds applicable to, or in respect of, any
Policy or
Liquidity Facility shall have a correlative meaning. When used with
respect to
the Senior Trustee or the Junior Trustee, "applicable" means the
Trustee in its
capacity as Trustee for the applicable Class of Senior Certificates
or Junior
Certificates.
"Applicable Fraction" means, with respect to any Special
Distribution Date, which is not also a Regular Distribution Date
and is not a
Special Distribution Date on which an Overdue Scheduled Payment is
being
distributed, a fraction, the numerator of which shall be the amount
of principal
of the applicable Equipment Note or 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.
"Appraisal" means a Fair Market Value appraisal (which may be a
"desktop" appraisal) performed by any nationally recognized
aircraft or aircraft
parts appraiser.
"Available Amount" means, in respect of any Primary Liquidity
Facility, on any date, the Maximum Available Commitment (as defined
in such
Primary Liquidity Facility) on such date.
"Avoided Payment" with respect to any Policy, has the meaning
assigned to such term in such Policy.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C
Section 101 et seq.
"Business Day" means any day (i) other than a Saturday or Sunday or
a day 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
which any Trustee, the Subordination Agent or the Mortgagee
maintains its
Corporate Trust Office or, solely with respect to draws under any
Policy, the
city and state in which the office of the applicable Policy
Provider at which
notices, presentations, transmissions, deliveries and
communications are to be
made under such Policy is located or the city and state in which
the corporate
trust office of the applicable Fiscal Agent is located (ii) that is
a day for
trading by and between banks in the London interbank Eurodollar
market and (iii)
that, solely with respect to draws under any Liquidity Facility,
also is a
"Business Day" as defined in such Liquidity Facility.
"Capped Interest Rate" (i) means in respect of the Class G-1
Certificates, Capped LIBOR at such time plus 0.23% per annum, and
(ii) in
respect of any Class of Additional Certificates has the applicable
meaning, if
any, specified in the form of Certificate attached as an Exhibit to
the
applicable Trust Agreement for such Class of Certificates;
provided, that, in
the case of any Class of Additional Certificates with respect to
which the
applicable Equipment Note bears interest at a fixed rate of
interest, "Capped
Interest Rate" means such fixed rate of interest.
3
"Capped LIBOR" (i) means in respect of the Class G-1 Certificates,
10.0% per annum, and (ii) in respect of any Class of Additional
Certificates has
the applicable meaning, if any, specified in the form of
Certificate attached as
an Exhibit to the applicable Trust Agreement for such Class of
Certificates.
"Cash Collateral Account" means any Primary Cash Collateral
Account,
or any Above-Cap Collateral Account, as applicable.
"Certificate" means a Senior Certificate or a Junior Certificate,
as
applicable.
"Certificateholder" means any holder of one or more Certificates.
"Class" means, in respect of any Certificate, a single class of
Certificates issued pursuant to a Trust Agreement.
"Class B-1 Certificates" means the Junior Certificates issued on
the
Closing Date by the Initial Junior Trust.
"Class B-1 Trustee" means the Junior Trustee in its capacity as
trustee of the Initial Junior Trust.
"Class G-1 Certificates" means the Senior Certificates issued on
the
Closing Date by the Initial Senior Trust.
"Class G-1 Trustee" means the Senior Trustee in its capacity as
trustee of the Initial Senior Trust.
"Closing Date" means November 14, 2006.
"Code" means the Internal Revenue Code of 1986, as amended from
time
to time, and the Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Indenture.
"Collateral Maintenance Agreement" has the meaning specified in the
Indenture.
"Collection Account" means the Eligible Deposit Account established
by the Subordination Agent pursuant to Section 2.2(a)(i) which the
Subordination
Agent shall make deposits in and withdrawals from in accordance
with this
Agreement.
"Consent Period" has the meaning specified in Section 3.5(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 the Mortgagee, the office of such Person in
the city at
which, at any particular time, its corporate trust business shall
be principally
administered.
4
"Credit Downgrade", in respect of any Above-Cap Liquidity Provider,
has the meaning specified in its applicable Above-Cap Liquidity
Facility.
"Credit Support Event", in respect of any Above-Cap Liquidity
Provider, has the meaning specified in its applicable Above-Cap
Liquidity
Facility.
"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.
"Current Fair Market Value", with respect to any Pledged Spare
Parts
or Pledged Spare Engines, means the Fair Market Value of such
Pledged Spare
Parts or the Adjusted Fair Market Value of such Pledged Spare
Engines, as
applicable, determined on the basis of the most recent Appraisal
obtained under
Section 4.1(a)(iii) or (iv).
"Default Period" has the meaning specified in Section 3.6(c).
"Deficiency Amount" has the meaning specified in Section 3.5(a).
"Designated Representatives" means the Subordination Agent
Representatives, the Trustee Representatives and the Provider
Representatives
identified under Section 2.5.
"Distribution Date" means a Regular Distribution Date or a Special
Distribution Date.
"Dollars" or "$" means United States dollars.
"Downgrade Drawing" has the meaning specified in Section 3.5(c).
"Downgrade Event", in respect of any Primary Liquidity Facility,
has
the meaning assigned to such term in such Primary Liquidity
Facility.
"Downgraded Facility" has the meaning specified in Section 3.5(c).
"Drawing" means an Interest Drawing, a Final Drawing, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
"DTC" means the Depositary Trust Company.
"Early Termination Date" , in respect of any Above-Cap Liquidity
Facility, has the meaning assigned to such term in such Above-Cap
Liquidity
Facility.
"Early Termination Fee", in respect of any Policy, has the meaning
assigned to such term in the Policy Fee Letter applicable to such
Policy.
"Election Distribution Date" has the meaning specified in Section
3.6(c).
"Election Interest Payment" has the meaning specified in Section
3.6(c).
5
"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 of at least A3 from Moody's and a long-term unsecured issuer
credit
rating of at least A- from Standard & Poor's. An Eligible
Deposit Account may be
maintained with a Primary Liquidity Provider so long as it 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 U.S.
branch of a
foreign bank), which has a long-term unsecured debt rating of at
least A3 from
Moody's and a long-term unsecured issuer credit rating of at least
A- from
Standard & Poor's.
"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 of at least P-1 and a short-term issuer credit
rating issued
by Standard & Poor's of at least A-1 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 a short-term
unsecured debt
rating by Moody's of at least P-1 and a short-term issuer credit
rating by
Standard & Poor's of at least A-1, 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 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;
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
Leading Policy
Provider and a Ratings Confirmation shall have been received with
respect to the
making of such investment.
"Equipment Note" means, at any time, each Senior Equipment Note and
each Junior Equipment Note, and in each case, any Equipment Note
issued in
exchange therefor or
6
replacement thereof pursuant to the terms of the Indenture.
"Equipment Notes"
has a correlative meaning.
"Excess Reimbursement Obligations" means with respect to a Policy
(a) in the event of any Policy Provider Election in relation to
such Policy, the
portion of all Policy Provider Obligations owed to the Policy
Provider that
issued such Policy that represents, when added to that portion of
all Liquidity
Obligations owed to the applicable Primary Liquidity Provider that
represents,
interest on the applicable Senior Equipment Note, in excess of 24
months of
interest at the interest rate(s) applicable to such Senior
Equipment Note, (b)
any interest on such Liquidity Obligations paid by such Policy
Provider to such
Primary Liquidity Provider in respect of the period from and after
the end of
the 24-month period referred to in Section 3.6(c) hereof and (c)
interest on
Policy Drawings under such Policy as set forth in the applicable
Policy Provider
Agreement (other than any such interest that constitutes a Policy
Provider
Obligation in relation to such Policy).
"Expected Distributions" means, with respect to the Certificates of
any Trust on any Current Distribution Date, the sum of (x) accrued
and unpaid
interest on the outstanding Pool Balance of such Certificates and
(y) 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 Pool Balance as of the original
issuance date
of such Certificates ) and (B) the Pool Balance of such
Certificates as of the
Current Distribution Date calculated on the basis that (i) the
principal of any
Performing Equipment Note held in such Trust has been paid when due
(whether at
stated maturity, upon redemption, prepayment, purchase,
Acceleration or
otherwise) and such payments have been distributed to the holders
of such
Certificates, (ii) the principal of any Non-Performing Equipment
Note held in
such Trust has been paid in full and such payments have been
distributed to the
holders of such Certificates and (iii) the principal of any
Equipment Note
formerly held in such Trust that has been sold pursuant to the
terms hereof has
been paid in full and such payments have been distributed to the
holders of such
Certificates. For purposes of calculating Expected Distributions
with respect to
the Certificates of any Trust, any Premium paid on the Equipment
Notes held in
such Trust which has not been distributed to the Certificateholders
of such
Trust (other than such Premium 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. For
the purposes of the application of any Special Payment in
accordance with
Section 3.2 hereof, clause (x) of this definition shall be deemed
to read as
follows: "(x) accrued, due and unpaid interest on the outstanding
Pool Balance
of such Certificates together with (without duplication) accrued
and unpaid
interest on a portion of the outstanding Pool Balance of such
Certificates equal
to the outstanding principal amount of the Equipment Notes held in
such Trust
and being redeemed, purchased or prepaid (immediately prior to such
redemption,
purchase or prepayment)."
"Expiry Date" in respect of any Primary Liquidity Facility, has the
meaning set forth in such Primary Liquidity Facility.
"Fair Market Value" has the meaning specified in the Indenture.
7
"Fee Letter" means any fee letter entered into between the
Subordination Agent and a Liquidity Provider. "Fee Letters" has a
correlative
meaning.
"Final Disposition" has the meaning specified in Section 3.6(b).
"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 and (y) the Pool
Balance of
such Certificates as of the immediately preceding Distribution
Date. For
purposes of calculating Final Distributions with respect to the
Certificates of
any Trust, any Premium paid on the Equipment Notes held in such
Trust which has
not been distributed to the Certificateholders of such Trust (other
than such
Premium 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
3.5(i).
"Final Legal Distribution Date" means, with respect to any Class of
Certificates, the date specified as such in the form of Certificate
attached as
an Exhibit to the applicable Trust Agreement.
"Final Order" with respect to any Policy, has the meaning assigned
to such term in such Policy.
"Fiscal Agent" in respect of any Policy, has the meaning assigned
to
such term in such Policy. "Fiscal Agents" has a correlative
meaning.
"Indenture" means the Trust Indenture and Mortgage, dated as of
November 14, 2006, entered into by the Mortgagee and JetBlue, as
the same may be
amended, supplemented or otherwise modified from time to time in
accordance with
its terms.
"Indenture Default" means an "Event of Default" , as such term is
defined in the Indenture.
"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 3.5(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.
"Initial Above-Cap Liquidity Facility" means the irrevocable
interest rate cap agreement pursuant to the ISDA Master Agreement,
dated as of
the date hereof, between the Subordination Agent, as agent and
trustee for the
Initial Senior Trust, and the initial Above-Cap
8
Liquidity Provider, together with the Schedule and Confirmation
attached
thereto, relating to the Class G-1 Certificates, as from time to
time amended,
supplemented or modified.
"Initial Certificates" means the Class G-1 Certificates and the
Class B-1 Certificates, being issued on the Closing Date.
"Initial Note Purchase Agreement" means the Note Purchase
Agreement,
dated as of November 14, 2006, among JetBlue, each Trustee, the
Subordination
Agent and the Mortgagee.
"Initial Policy" has the meaning specified in the definition of
"Policy".
"Initial Policy Provider" means MBIA Insurance Corporation.
"Initial Primary Liquidity Facility" means the Revolving Credit
Agreement, dated as of November 14, 2006, between the Subordination
Agent, as
agent and trustee for the Initial Senior Trust, and the initial
Primary
Liquidity Provider, as from time to time amended, supplemented or
modified.
"Initial Senior Trust" is defined in the definition of "Senior
Trust."
"Initial Underwriting Agreement" means the Underwriting Agreement,
dated as of November 7, 2006, between Morgan Stanley & Co.
Incorporated (as
representative of the several underwriters) and JetBlue pertaining
to the
Initial Certificates.
"Insured Primary Liquidity Facility" is defined in Section 3.6(d).
"Insured Primary Liquidity Provider" means the provider of any
Insured Primary Liquidity Facility.
"Insured Senior Certificates" has the meaning specified in Section
3.6(a) hereof.
"Interest Drawing" has the meaning specified in Section 3.5(a).
"Interest Payment Date" means each date on which interest is due
and
payable under a Primary Liquidity Facility on a Downgrade Drawing,
Non-Extension
Drawing or Final Drawing thereunder, other than any such date on
which interest
is due and payable under such Primary Liquidity Facility only on an
Applied
Provider Advance (as such term is defined in such Primary Liquidity
Facility).
"Interest Period" has the meaning specified in the 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.
"JetBlue" means JetBlue Airways Corporation, a Delaware
corporation,
and its successors and assigns.
9
"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 a
substantial part of its property, or JetBlue shall admit in writing
its
inability to pay its debts generally as they come due, or does not
pay its
debts generally as they become due 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 any substantial
part of
its property, or any substantial part 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 60 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 60 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
60 days.
"JetBlue Provisions" has the meaning specified in Section 9.1(a).
"Junior Certificateholder" means, at any time, any holder of one or
more Junior Certificates.
"Junior Certificates" means the certificates issued by a Junior
Trust holding a Junior Equipment Note, substantially in the form of
Exhibit A to
the applicable Junior Trust Agreement, and authenticated by the
Junior Trustee,
representing fractional undivided interests in such Junior Trust,
and any
certificates issued in exchange therefor or replacement thereof
pursuant to the
terms of the applicable Junior Trust Agreement.
10
"Junior Equipment Note" means each Series B-1 Equipment Note and
each Equipment Note issued after the Closing Date which is
designated as a
"Series B" Equipment Note, and any such Equipment Note issued in
exchange
therefor or replacement thereof pursuant to the terms of the
Indenture.
"Junior Trust" means (i) the JetBlue Airways (Spare Parts) B-1 Pass
Through Trust (the "INITIAL JUNIOR TRUST") and (ii) each subsequent
JetBlue
Airways (Spare Parts) Pass Through Trust Class B created and
administered
pursuant to a Junior Trust Agreement, as contemplated by Article X.
"Junior Trust Agreement" means (i) the JetBlue Airways (Spare
Parts)
B-1 Pass Through Trust Agreement (Spare Parts), dated as of
November 14, 2006,
pertaining to the Class B-1 Certificates and (ii) each subsequent
JetBlue
Airways Pass (Spare Parts) Through Trust Agreement pertaining to
subsequent
Class of Junior Certificates, in each case as the same may be
amended,
supplemented or otherwise modified from time to time in accordance
with its
terms. "Junior Trust Agreements" has a correlative meaning.
"Junior Trustee" means WTC, not in its individual capacity except
as
expressly set forth in the Junior Trust Agreements, but solely as
trustee under
each of the Junior Trust Agreements, together with any successor
trustee
appointed pursuant thereto.
"Leading Policy Provider" has the meaning specified in Section
2.6(b).
"Lending Office" in respect of any Primary Liquidity Provider, has
the meaning set forth in the applicable Primary Liquidity Facility.
"LIBOR" in respect of any Class of Certificates, has the meaning
specified in the Reference Agency Agreement.
"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", in respect of any Primary Liquidity
Facility, has the meaning assigned to such term in such Primary
Liquidity
Facility.
"Liquidity Expenses" means, in respect of any Primary Liquidity
Facility, all Liquidity Obligations in respect of such Primary
Liquidity
Facility other than (i) the principal amount of any Drawings under
such Primary
Liquidity Facility and (ii) any interest accrued on any Liquidity
Obligations in
respect of such Primary Liquidity Facility.
"Liquidity Facility" means, at any time, any Primary Liquidity
Facility or Above-Cap Liquidity Facility, as applicable. "Liquidity
Facilities"
has a correlative meaning.
"Liquidity Guarantee" means in respect of any Above-Cap Liquidity
Facility, any guarantee of the applicable Above Cap Liquidity
Provider's
obligations under such Above-Cap Liquidity Facility.
11
"Liquidity Guarantor" means the obligor on the applicable Liquidity
Guarantee.
"Liquidity Obligations" means, in respect of any Primary Liquidity
Facility, all principal, interest, fees and other amounts owing to
the
applicable Primary Liquidity Provider under such Primary Liquidity
Facility,
Section 8.1 of the applicable Note Purchase Agreement or the
applicable Fee
Letters.
"Liquidity Provider" means, at any time, a Primary Liquidity
Provider or Above-Cap Liquidity Provider, as applicable. "Liquidity
Providers"
has a correlative meaning.
"Liquidity Provider Reimbursement Date" means (x) in respect of any
Insured Primary Liquidity Facility: the Business Day which is the
earliest to
occur of (i) the date on which an Interest Drawing shall have been
made under
such Insured Primary Liquidity Facility and remains unreimbursed
for 24 months,
(ii) the date on which any Downgrade Drawing, Non-Extension Drawing
or Final
Drawing under such Insured Primary Liquidity Facility that was
deposited into
the applicable Primary Cash Collateral Account shall have been
applied to pay
any scheduled payment of interest on the applicable Class of Senior
Certificates
and remains unreplenished to such Primary Cash Collateral Account
or
unreimbursed to the applicable Insured Primary Liquidity Provider,
as the case
may be, for 24 months and (iii) the date on which all of the
Equipment Notes
have been Accelerated and continue to be Non-Performing Equipment
Notes for 24
months (in each case in clauses (i), (ii) and (iii), disregarding
any
reimbursements from payments by the Policy Provider(s) and from any
Special
Payment constituting proceeds from the sale of Equipment Notes or
Collateral
during such 24-month period); and (y) with respect to any other
Primary
Liquidity Facility, the date, calculated as provided above but with
the time
periods being 36 months instead of 24 months.
"Mandatory Termination Event" has the meaning specified in Section
3.5(c)(iv).
"Minimum Sale Price" means, with respect to (a) any Pledged Spare
Parts or Pledged Spare Engines proposed to be sold, 75% of the
aggregate Current
Fair Market Value of such Pledged Spare Parts or the Adjusted Fair
Market Value
of such Pledged Spare Engines, as applicable and (b) the Equipment
Notes, the
lesser of (i) 75% of the Current Fair Market Value of all Pledged
Spare Parts or
the Adjusted Fair Market Value of all Pledged Spare Engines then
subject to the
Lien of the Indenture and (ii) the aggregate outstanding principal
amount of the
Equipment Notes, plus accrued and unpaid interest thereon.
"Moody's" means Moody's Investors Service, Inc.
"Mortgagee" has the meaning specified in the Indenture.
"Non-Controlling Party" means, at any time, any Trustee, Liquidity
Provider or Policy Provider which is not the Controlling Party at
such time.
"Non-Extended Facility" has the meaning specified in Section
3.5(d).
"Non-Extension Drawing" has the meaning specified in Section
3.5(d).
12
"Non-Performing Equipment Note" means an Equipment Note that is not
a Performing Equipment Note.
"Note Holder" has the meaning specified in the Indenture.
"Note Purchase Agreement" means (i) the Initial Note Purchase
Agreement; and (ii) each other Note Purchase Agreement among
JetBlue, the
applicable Trustee(s), the Subordination Agent and the Mortgagee,
entered into
pursuant to Section 10.2 in connection with the issuance of
Additional Equipment
Notes pursuant to Section 11.02 of the Indenture and the
corresponding issuance,
sale and delivery of one or more Class(es) of Additional
Certificates, in each
case as amended, supplemented or otherwise modified from time to
time in
accordance with its terms.
"Notice of Avoided Payment" has the meaning assigned to such term
in
the applicable Policy.
"Notice for Payment" means a Notice of Nonpayment as such term is
defined in the applicable 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 Liquidity Guarantees, the Policies, the Policy
Provider
Agreements, the Policy Fee Letters, the Indenture, the Collateral
Maintenance
Agreement, the Trust Agreements, the Underwriting Agreements, the
Fee Letters,
the Reference Agency Agreements, the Note Purchase Agreements, 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 Distributions 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 Distributions 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;
13
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 five days after
the Scheduled
Payment Date relating thereto.
"Payee" has the meaning specified in Section 2.4(c).
"Payment Default" has the meaning specified in the Indenture.
"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 in which JetBlue is a debtor any Payment
Default
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 or as may apply for the cure of such Payment Default under
Section
1110(a)(2)(B) of the Bankruptcy Code) shall not be taken into
consideration
until the expiration of the applicable period.
"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.
"Pledged Spare Parts" has the meaning assigned to such term in the
Indenture.
"Policy" means (i) the Financial Guaranty Insurance Policy, Policy
No. 487110 issued as of the Closing Date with respect to the Class
G-1
Certificates (the "Initial Policy"); and (ii) each Additional
Policy, in each
case as amended, supplemented or otherwise modified from time to
time in
accordance with its terms.
"Policy Account" means, in respect of any Policy, a separate
Eligible Deposit Account established by the Subordination Agent
pursuant to
Section 2.2(a)(iv) which the Subordination Agent shall make
deposits in and
withdrawals from in accordance with this Agreement.
"Policy Drawing" means, in respect of any Policy, any payment of a
claim under such Policy.
"Policy Expenses" means, in respect of any Policy, all amounts
(including amounts in respect of premiums, fees, expenses or
indemnities) due to
the applicable Policy
14
Provider under the applicable Policy Provider Agreement or Note
Purchase
Agreement other than (i) any amounts due under the applicable
Policy Fee Letter,
(ii) the amount of any Excess Reimbursement Obligations in respect
of such
Policy, (iii) any Policy Drawing under such Policy, (iv) any
interest accrued on
any Policy Provider Obligations in respect of such Policy, (v) any
amounts that
the applicable Policy Provider is entitled to receive by virtue of
the
subrogation rights of such Policy Provider hereunder and (vi)
reimbursement of
and interest on the Liquidity Obligations in respect of the
applicable Primary
Liquidity Facility paid by such Policy Provider to the applicable
Primary
Liquidity Provider; provided that if, at the time of determination,
a Policy
Provider Default in respect of such Policy exists, Policy Expenses
shall not
include any indemnity payments owed to the applicable Policy
Provider.
"Policy Fee Letter" means in respect of any Policy the fee letter,
dated the date of delivery of such Policy from the applicable
Policy Provider to
JetBlue and acknowledged by the Subordination Agent, setting forth
the fees and
premiums payable with respect to such Policy.
"Policy Provider" means, in respect of any Policy, the provider
thereof, and its successors and permitted assigns. "Policy
Providers" has a
correlative meaning.
"Policy Provider Agreement" means, in respect of any Policy, the
agreement between JetBlue and the applicable Policy Provider
pursuant to which
such Policy was issued, as amended, supplemented or otherwise
modified from time
to time in accordance with its terms.
"Policy Provider Amounts" means, in respect of any Policy, all
Policy Provider Obligations, Policy Expenses, amounts due under the
Policy Fee
Letter (excluding any Early Termination Fee and without duplication
of any
Policy Provider Obligations or Policy Expenses) and Excess
Reimbursement
Obligations, in each case, in respect of such Policy.
"Policy Provider Default" means, in respect of any Policy Provider
and its applicable Policy, the occurrence of any of the following
events: (a)
such Policy Provider fails to make a payment required under such
Policy in
accordance with its terms and such failure remains unremedied for
two Business
Days following the delivery of Written Notice of such failure to
such Policy
Provider or (b) such 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 such 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 such Policy Provider (or taking of
possession of
all or any material portion of such Policy Provider's property).
"Policy Provider Documents" means, in respect of any Policy, such
Policy, the applicable Policy Provider Agreement, the applicable
Indemnification
Agreement and the applicable Policy Fee Letter.
15
"Policy Provider Election" has the meaning specified in Section
3.6(c).
"Policy Provider Interest Obligations" means, in respect of any
Policy, any interest on any Policy Drawing under such Policy made
to cover any
shortfall attributable to any failure of the applicable Primary
Liquidity
Provider to honor any Interest Drawing in accordance with 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 such Primary Liquidity Facility at the interest
rate applicable
to such Interest Drawing until such Policy Drawing has been repaid
in full.
"Policy Provider Obligations" means, in respect of any Policy, all
reimbursement and other amounts, including, without limitation,
fees and
indemnities (to the extent not included in the applicable Policy
Expenses), due
to the applicable Policy Provider under the applicable Policy
Provider Agreement
but shall not include (i) amounts under the applicable Policy Fee
Letter and
(ii) any interest on Policy Drawings under such Policy other than
the applicable
Policy Provider Interest Obligations.
"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 as of such date in respect of the Certificates of such Trust
other than
payments made in respect of interest or Premium 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 date shall be
computed after
giving effect to any payment of principal of the Equipment Notes,
payments under
the applicable Policy, if any, for such Trust (other than in
respect of interest
on the Certificates) or payment with respect to other Trust
Property held in
such Trust and the distribution thereof to be made on that date.
"Premium" means any "Premium" or any "Break Amount", as such terms
are defined in the Indenture.
"Primary Cash Collateral Account" means, in respect of any Primary
Liquidity Facility, a separate 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 Primary Liquidity Facility pursuant to Section 3.5(c), 3.5(d)
or 3.5(i)
shall be deposited.
"Primary Liquidity Facility" means, (i) each of the Initial Primary
Liquidity Facility and each Additional Primary Liquidity Facility
and (ii) from
and after the replacement of any such Initial Primary Liquidity
Facility or
Additional Primary Liquidity Facility, as the case may be, the
applicable
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. "Primary Liquidity Facilities" has a correlative
meaning.
"Primary Liquidity Provider" means, in respect of any Primary
Liquidity Facility, the provider thereof.
"Prior Funds" means, on any Distribution Date, any Drawing paid
under the applicable Primary Liquidity Facility in respect of
interest due on
the applicable Senior
16
Certificates on such Distribution Date and any funds withdrawn from
the
applicable Primary Cash Collateral Account or from the applicable
Above-Cap
Account on such Distribution Date 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 specified in
Section 2.5(c).
"Provider Representatives" has the meaning specified in Section
2.5(c).
"PTC Event of Default" means, with respect to each Trust Agreement,
the failure to pay within 10 Business Days of the due date thereof:
(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 any
Senior Trust
Agreement, the Subordination Agent shall have made a drawing under
the
applicable Policy, if any, with respect thereto in an amount
sufficient to pay
such outstanding Pool Balance and shall have distributed such
amount to the
Trustee entitled thereto) or (ii) interest due on such Certificates
on any
Distribution Date (unless, in the case of the Senior Trust, the
Subordination
Agent shall have made an Interest Drawing, a withdrawal from the
applicable
Primary Cash Collateral Account, a withdrawal from the applicable
Above-Cap
Account or a drawing under the applicable Policy with respect
thereto in an
aggregate amount sufficient to pay such interest and shall have
distributed such
amount to the applicable Senior Trustee).
"Rating Agencies" means, collectively, at any time, and with
respect
to a Class of Certificates, each nationally recognized rating
agency which shall
have been requested by JetBlue to rate such Class of Certificates
and which
shall then be rating such Class of Certificates. The initial Rating
Agencies for
each Class of Certificates 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
with respect
to the applicable Class of Certificates that such action would not
result in (i)
a reduction of the rating of such Class of Certificates below the
then current
rating for such Class of Certificates (such rating, in the case of
the Insured
Senior Certificates, as determined without regard to the applicable
Policy) or
(ii) a withdrawal or suspension of the rating of such Class of
Certificates.
"Redemption Notice" means a notice of redemption issued by JetBlue
pursuant to Section 2.12 of the Indenture.
"Reference Agency Agreement" means the Reference Agency Agreement,
dated as of the date hereof, among JetBlue, WTC, as the reference
agent
thereunder, and the Subordination Agent, as amended, supplemented
or otherwise
modified from time to time in accordance with its terms.
"Regular Distribution Dates" means each April 2, July 2, October 2
and January 2, commencing on January 2, 2007; provided, however,
that, if any
such day shall not be a
17
Business Day, the related distribution shall be made on the next
succeeding
Business Day, with additional interest for such additional period.
"Replacement Above-Cap Liquidity Facility" means an irrevocable
interest rate cap agreement (or agreements) for the same term as
the Above-Cap
Liquidity Facility being replaced, in substantially the form of the
Above-Cap
Liquidity Facility being replaced 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 applicable
Certificates (before
the downgrading of such ratings, if any, as a result of the
downgrading of the
Above-Cap Liquidity Provider and without regard to the applicable
Policy, if
any), and be consented to by the applicable Policy Provider, if
any, insuring
such Certificates, which consent shall not be unreasonably withheld
or delayed,
issued by a Person (or Person(s)) having a short-term unsecured
debt rating
issued by Moody's and a short-term issuer credit rating issued by
Standard &
Poor's that are equal to or higher than the applicable Threshold
Rating, as
amended, supplemented or otherwise modified from time to time in
accordance with
its terms.
"Replacement Above-Cap Liquidity Provider" means a Person (or
Persons) who issues a Replacement Above-Cap Liquidity Facility.
"Replacement Liquidity Facility" means any of a Replacement
Above-Cap Liquidity Facility or a Replacement Primary Liquidity
Facility, in
each case as amended, supplemented or otherwise modified from time
to time in
accordance with its terms.
"Replacement Primary Liquidity Facility" means 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 applicable Class of Certificates (before downgrading of
such ratings, if
any, as a result of the downgrading of the Primary Liquidity
Provider but
without regard to the applicable Policy, if any), and be consented
to by the
applicable Policy Provider, if any, insuring such Certificates,
which consent
shall not be unreasonably withheld or delayed, in a face amount (or
in an
aggregate face amount) equal to the amount of interest payable on
the applicable
Class of Certificates (at the applicable Capped Interest Rate, and
without
regard to expected future principal payments) on the eight Regular
Distribution
Dates following the date of replacement of such Primary Liquidity
Facility and
issued by a Person (or Persons) having unsecured short-term debt
rating or
issuer credit rating, 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 may
have a stated
expiration date earlier than 15 days after the Final Legal
Distribution Date of
the applicable Class of Certificates so long as such Replacement
Primary
Liquidity Facility provides for a Non-Extension Drawing as
contemplated by
Section 3.5(d) hereof, as amended, supplemented or otherwise
modified from time
to time in accordance with its terms.
"Replacement Primary Liquidity Provider" means a Person (or
Persons)
who issues a Replacement Primary Liquidity Facility.
18
"Required Amount" means with respect to any Primary Liquidity
Facility or its applicable Primary Cash Collateral Account, for any
day, (i) so
long as there is no Interest Drawing made thereunder remaining
unreimbursed on
such day, the sum of the aggregate amount of interest, calculated
at the rate
per annum equal to the applicable Capped Interest Rate, that would
be payable on
the applicable Class of Certificates on each of the eight
successive Regular
Distribution Dates immediately following such day or, if such day
is a Regular
Distribution Date, on such day and the succeeding seven Regular
Distribution
Dates, in each case calculated on the basis of the Pool Balance of
such Class of
Certificates on such date and without regard to expected future
payments 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 solely for purposes of the definition of Required
Amount with
respect to the applicable Primary Liquidity Facility shall, in the
event of any
Policy Provider Election, be deemed to be reduced to zero.
"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 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, (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, which
payment
represents the installment of principal scheduled to be paid
pursuant to the
Indenture (without giving effect to Acceleration) on such Equipment
Note
(including after giving effect to any change in the amount of such
installment
due to an optional redemption pursuant to the Indenture), the
payment of
regularly scheduled interest accrued on the unpaid principal amount
of such
Equipment Note, or both, (ii) any payment of interest on any Class
of
Certificates with funds drawn under the Primary Liquidity Facility
(or the
Primary Cash Collateral Account) applicable to such Class or
withdrawn from the
applicable Above-Cap Account or (iii) any payment of interest on or
principal of
any Class of Senior Certificates with funds drawn under the Policy
applicable to
such Class, which payment in any such case represents the
installment of
principal scheduled to be paid pursuant to the Indenture (without
giving effect
to Acceleration) on such Equipment Note (including after giving
effect to any
change in the amount of such installment due to an optional
redemption pursuant
to the Indenture), 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.
19
"Scheduled Payment Date" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to
be made.
"Senior Certificateholder" means, at any time, any holder of one or
more Senior Certificates.
"Senior Certificates" means the certificates issued by a Senior
Trust holding a Senior Equipment Note, substantially in the form of
Exhibit A to
the applicable Senior Trust Agreement, and authenticated by the
Senior Trustee,
representing fractional undivided interests in such Senior Trust,
and any
certificates issued in exchange therefor or replacement thereof
pursuant to the
terms of the applicable Senior Trust Agreement.
"Senior Equipment Note" means each Series G-1 Equipment Note and
each Equipment Note issued after the Closing Date which is
designated as a
"Series G" or as a "Series A" Equipment Note, and any such
Equipment Note issued
in exchange therefor or replacement thereof pursuant to the terms
of the
Indenture. For the avoidance of doubt, all Senior Equipment Notes
rank on a
parity with each other; provided, that, a Senior Trust holding a
"Series G"
Equipment Note also holds a Policy in respect of the Senior
Certificates issued
by such Senior Trust, while a Senior Trust holding a "Series A"
Equipment Note
does not hold any such Policy.
"Senior Trust" means (i) initially, the JetBlue Airways (Spare
Parts) G-1 Pass Through Trust (the "Initial Senior Trust") and (ii)
each
subsequent JetBlue Airways (Spare Parts) Pass Through Trust Class G
or Class A
created and administered pursuant to a Senior Trust Agreement, as
contemplated
by Article X.
"Senior Trust Agreement" means (i) initially, the JetBlue Airways
(Spare Parts (G-1) Pass Through Trust Agreement, dated as of
November 14, 2006
pertaining to the Class G-1 Certificates and (ii) each subsequent
JetBlue
Airways (Spare Parts) Pass Through Trust Agreement pertaining to
any subsequent
Class of Senior Certificates, in each case as the same may be
amended,
supplemented or otherwise modified from time to time in accordance
with its
terms. "Senior Trust Agreements" has a correlative meaning.
"Senior Trustee" means WTC, not in its individual capacity except
as
expressly set forth in the Senior Trust Agreements, but solely as
trustee under
each of the Senior Trust Agreements, together with any successor
trustee
appointed pursuant thereto.
"Series" means, in respect of any Equipment Note, a single series
of
Equipment Notes issued under the 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 or (ii) the date chosen by the Subordination Agent
pursuant to Section
3.6(b), 3.6(c) or Section 3.6(f), 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 Distribution Withdrawal" has the meaning specified in
Section 3.5(f) hereof.
20
"Special Payment" means any payment (other than a Scheduled
Payment)
in respect of, or any proceeds of, any Equipment Note or
Collateral.
"Special Payments Account" means the Eligible Deposit Account
created pursuant to Section 2.2(a)(ii) as a sub-account to the
Collection
Account.
"Special Termination" has the meaning specified in Section 3.5(n).
"Standard & Poor's" means Standard & Poor's Ratings
Services, a
division of The McGraw-Hill Companies, Inc.
"Stated Amount", in respect of any Primary Liquidity Facility,
means
the Maximum Commitment (as defined in such Primary Liquidity
Facility) of such
Primary Liquidity Provider.
"Stated Expiration Date", in respect of any Primary Liquidity
Facility has the meaning specified in Section 3.5(d).
"Stated Interest Rate" (i) means in respect of the Class G-1
Certificates, in the case of the first Interest Period, 5.60438%
per annum and,
in the case of any subsequent Interest Period, means LIBOR for such
Interest
Period plus 0.23% per annum; (ii) means in respect of the Class B-1
Certificates, in the case of the first Interest Period, 8.24938%
per annum and,
in the case of any subsequent Interest Period means, LIBOR for such
Interest
Period plus 2.875% per annum; and (iii) means part of any Class of
Additional
Certificates, the "Stated Interest Rate" as defined in the form of
Certificate
for such Class attached as an Exhibit to the applicable Senior
Trust Agreement
or Junior Trust Agreement; provided that (x) if a Payment Default
has occurred
and is continuing on any Regular Distribution Date, the Stated
Interest Rate for
the Class G-1 Certificates or any Class of Additional Certificates
with a
floating rate of interest for the Interest Period commencing on
such Regular
Distribution Date shall not exceed the applicable Capped Interest
Rate, if any,
for such Certificates and (y) if all the continuing Payment
Defaults are cured
during such Interest Period, the Stated Interest Rate for such
Certificates
shall revert to the Stated Interest Rate for such Interest Period,
calculated
without giving effect to the applicable Capped Interest Rate for
such
Certificates.
"Subordination Agent" has the meaning assigned to it in the
preliminary statements to this Agreement.
"Subordination Agent Incumbency Certificate" has the meaning
specified in Section 2.5(a).
"Subordination Agent Representatives" has the meaning specified in
Section 2.5(a).
"Tax" and "Taxes" mean any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any 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
foreign government (or any subdivision or agency thereof) or other
taxing
authority,
21
including, without limitation: taxes or other charges 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 and similar charges; taxes
or other
charges in the nature of excise, withholding, ad valorem, stamp,
transfer, value
added, taxes on goods and services, gains taxes, license,
registration and
documentation fees, customs duties, tariffs, and similar charges.
"Termination Amount" in respect of any Above-Cap Liquidity
Facility,
has the meaning assigned to such term in such Above-Cap Liquidity
Facility.
"Termination Event" in respect of any Above-Cap Liquidity Facility,
has the meaning assigned to such term in such Above-Cap Liquidity
Facility.
"Termination Notice" in respect of any Primary Liquidity Facility,
has the meaning assigned to such term in such Primary Liquidity
Facility.
"Threshold Rating" means the short-term unsecured debt rating of
P-1
by Moody's and the short-term issuer credit rating of A-1 by
Standard & Poor's.
"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 Default
resulting in a PTC Event of Default with respect to any Class of
Senior
Certificates then Outstanding, (y) the Acceleration of all of the
outstanding
Equipment Notes or (z) the occurrence of a JetBlue Bankruptcy
Event.
"Trust" means any of the Senior Trusts or the Junior Trusts.
"Trust Accounts" has the meaning specified in Section 2.2(a).
"Trust Agreement" means any of the Senior Trust Agreements or the
Junior Trust Agreements.
"Trust Property" with respect to any Trust, has the meaning set
forth in the Trust Agreement for such Trust.
"Trustee" means any of the Senior Trustee or the Junior Trustee.
"Trustee Incumbency Certificate" has the meaning specified in
Section 2.5(b).
"Trustee Representatives" has the meaning specified in Section
2.5(b).
"Unapplied Provider Advance" in respect of any Primary Liquidity
Facility, has the meaning specified in such Primary Liquidity
Facility.
22
"Underwriter" means, in respect of any Certificate, means the
underwriter referred to in the Underwriting Agreement pertaining to
such
Certificate.
"Underwriting Agreement" means (i) the Initial Underwriting
Agreement and (ii) any underwriting agreement, private placement or
analogous
agreement pursuant to which the initial offering and sale of the
applicable
Certificates is effected, in each case as the same may be amended,
supplemented
or otherwise modified from time to time in accordance with its
terms.
"Withdrawal Notice" has the meaning specified in Section 3.5(d).
"Written Notice" means, from the Subordination Agent, any Trustee,
any Liquidity Provider or any Policy Provider, a written instrument
executed by
the Designated Representative of such Person. An invoice delivered
by any
Primary 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 acknowledges and agrees to the
terms of subordination and distribution set forth in this Agreement
in respect
of each Class of Certificates and agrees to enforce such provisions
and cause
all payments in respect of the Equipment Notes, the Liquidity
Facilities and the
Policies to be applied in accordance with the terms of this
Agreement. 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, all payments to be made by the
Subordination Agent
hereunder shall be made only from amounts received by it that
constitute
Scheduled Payments, Special Payments or payments under Section 8.1
of the Note
Purchase Agreements, 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 its respective Primary Liquidity
Facility, and each
Policy Provider, by entering into its respective Policy Provider
Agreement, has
agreed to look solely to such amounts to the extent available for
distribution
to it as provided in this Agreement and that none of the Trustees,
Mortgagee nor
the Subordination Agent is personally liable to any of them for any
amounts
payable or any liability under this Agreement, any Trust Agreement,
any
Liquidity Facility, any Policy Provider Agreement, any Policy or
such
Certificate, except (in the case of the
23
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
Mortgagee) as expressly provided in any Operative Agreement.
(c)
Without limiting the generality of the above, amounts realized
under any Policy or Liquidity Facility may only be applied to the
Class of
Certificate in respect of which such Policy or Liquidity Facility
was issued
(such Class being the "applicable Class" in respect of such Policy
and/or
Liquidity Facility and such Policy and/or Liquidity Facilities
being the
"applicable Policy" and "applicable Liquidity Facilities" (and
"applicable
Primary Liquidity Facility " and "applicable Above-Cap Liquidity
Facility") and
the providers thereof being the "applicable Policy Provider",
"applicable
Primary Liquidity Provider" and " applicable Above-Cap Liquidity
Provider" in
respect of such Class) and to the extent specified to the
applicable Policy and
applicable Liquidity Facilities in respect of such Class.
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, each Primary
Liquidity Provider
and each 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, each Primary
Liquidity Provider
and each Policy Provider, (iii) an Above-Cap Account (in respect of
each
Above-Cap Liquidity Facility), as an Eligible Deposit Account,
bearing a
designation clearly indicating that the funds deposited therein are
held in
trust for the benefit of the Certificateholders of the applicable
Class with
respect to which such Above-Cap Liquidity Facility is issued) and
(iv) a Policy
Account (in respect of each Policy), as an Eligible Deposit
Account, bearing a
designation clearly indicating that the funds deposited therein are
held in
trust for the benefit of the applicable Senior Trustee and the
Senior
Certificateholders of the applicable Class with respect to which
such Policy is
issued. The Subordination Agent shall establish and maintain the
Cash Collateral
Accounts pursuant to and under the circumstances set forth in
Section 3.5(f)
hereof. Each Above-Cap Collateral Account in respect of an
Above-Cap Liquidity
Facility shall bear a designation clearly indicating that the funds
deposited
therein are held in trust for the benefit of the applicable Trustee
and
Certificateholders of the applicable Class with respect to which
such Above-Cap
Liquidity Facility was issued. Upon such establishment and
maintenance under
Section 3.5(f) hereof, the Cash Collateral Accounts shall, together
with the
Collection Account, the Above-Cap Accounts and the Policy 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 Trusts.
(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 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
Above-Cap Collateral Accounts in the manner specified in Schedule
2.2(b)
attached hereto); provided,
24
however, that following the making of a Downgrade Drawing or a
Non-Extension
Drawing under a Primary Liquidity Facility, the Subordination Agent
shall invest
and reinvest such amounts in Eligible Investments at the direction
of JetBlue
(or, if and to the extent so specified to the Subordination Agent
by JetBlue in
writing, by the applicable Primary Liquidity Provider); provided
further,
however, that, notwithstanding the foregoing proviso, following the
making of a
Non-Extension Drawing under any Primary Liquidity Facility, the
Subordination
Agent shall invest and reinvest the amounts in the applicable
Primary Cash
Collateral Account in Eligible Investments pursuant to the written
instructions
of the Primary Liquidity Provider funding such Drawing; provided
further,
however, that upon the occurrence and during the continuation of a
Triggering
Event, the Subordination Agent shall invest and reinvest such
amounts 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 Cash Collateral Accounts and in the Above-Cap
Accounts, in
each case pursuant to Section 3.5(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.
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 in Section 3.3(b) 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
applicable Trustees, Certificateholders, Primary Liquidity
Providers and Policy
Providers, as the case may be. If, at any time, any of the Trust
Accounts 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, for which
a Ratings Confirmation for each Class of Certificates and the
consent of the
Policy Provider (which consent shall not be unreasonably withheld
or delayed)
shall have been obtained) establish a new applicable Collection
Account, Special
Payments Account, Policy 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 Trust Account. So long as WTC is
an Eligible
Institution, the Trust Accounts shall be maintained with it as
Eligible Deposit
Accounts.
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 a
Policy Account or a Cash Collateral Account).
25
(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) below, 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, Primary Liquidity
Provider and
Policy Provider. The Subordination Agent shall promptly calculate
the amount of
the redemption or purchase of all or any portion of any Equipment
Note, the
amount of any Overdue Scheduled Payment or the proceeds of any
portion of any
Equipment Note or the Collateral, as the case may be, comprising
such Special
Payment under the Indenture and shall promptly send to each
Trustee, Primary
Liquidity Provider and Policy Provider a Written Notice of such
amount and the
amount thereof 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. For purposes of
calculating any such
distribution, if the Special Payment to be distributed on any
Special
Distribution Date which is not also a Regular Distribution Date and
is not a
Special Distribution Date on which an Overdue Scheduled Payment is
being
distributed, results from the redemption, purchase or prepayment of
any portion
of any Equipment Note prior to the occurrence of a Payment Default
under the
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 Providers under the Policy Fee Letters pursuant to clause
"ninth" of
Section 3.2 shall be multiplied by the Applicable Fraction. Amounts
on deposit
in the Special Payments Account shall be distributed in accordance
with Section
2.4(b), 2.4(c) and Article III hereof, as applicable.
(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 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 or Policy Provider Obligations (which
shall be
distributed on a Distribution Date as provided in Section 3.2), 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, Liquidity Provider or Policy Provider
(collectively, the
"Payees") and (ii) any compensation 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 (and with the delivery of any joinder agreement in
connection
with the issuance of any Additional Certificates pursuant to
Article X), the
Subordination Agent shall furnish to each Liquidity Provider,
Policy Provider
and Trustee, and from time to time thereafter may furnish to each
Liquidity
Provider, Policy Provider and Trustee, at the Subordination Agent's
discretion,
or
26
upon any Liquidity Provider's, 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,
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 (and the delivery of any
joinder agreement in connection with the issuance of any Additional
Certificates
pursuant to Article X), 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 (and the delivery of any
joinder agreement applicable to it in connection with the issuance
of any
Additional Certificates pursuant to Article X), each Liquidity
Provider and
Policy Provider 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
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) The Trustees, the Policy
Providers and the Liquidity Providers hereby agree that, at any
given time, the
Mortgagee will be directed (i) in taking, or refraining from
taking, any action
under the Indenture or with respect to the Equipment Notes, so long
as no
Indenture Default has occurred and is continuing thereunder, by the
holders of
at least a majority of the outstanding principal amount of the
Equipment Notes
(provided that, for so long as the Subordination Agent is the
registered holder
of the Equipment Notes, the Subordination Agent shall act with
respect to this
clause (i) in accordance with the directions of the Trustees (in
the case of
each such Trustee, with respect to the Equipment Notes issued under
such
Indenture and held as Trust Property of such Trust) constituting,
in the
27
aggregate, directions with respect to at least a majority of
outstanding
principal amount of Equipment Notes except as provided in Section
9.1(b)), and
(ii) after the occurrence and during the continuance of an
Indenture Default
thereunder, in taking, or refraining from taking, any action under
the Indenture
or with respect to the Equipment Notes, including exercising
remedies thereunder
(including Accelerating the Equipment Notes issued thereunder or
foreclosing the
Lien on the Collateral), by the Controlling Party.
(b)
The Person who shall be the "Controlling Party" with respect
to the Indenture shall be, except as provided below, the Policy
Provider (the
"Leading Policy Provider") for any class of Senior Certificates,
(i) with
respect to which no Policy Provider Default is continuing (each
such provider
being a "Non-Defaulting Provider"), as the case may be, and (ii)
with respect to
which the sum of (x) the aggregate amount of unreimbursed principal
of drawings
made under its respective Policy or Policies and (y) the aggregate
outstanding
Pool Balance of Senior Certificates insured by its Policy or
Policies shall be
the largest among all Non-Defaulting Policy Providers.
If a Policy Provider Default is continuing with respect to all
Policy Providers, or if all Policies have been surrendered for
cancellation
(thereby releasing all Policy Providers from their respective
obligations under
the Policies) and all Policy Provider Amounts (other than any
amount referred to
in clause (c) of the definition of Excess Reimbursement
Obligations) have been
paid in full, the Senior Trustee for the Class of Senior
Certificates which has
the largest outstanding Pool Balance among all Classes of Senior
Certificates
shall be the Controlling Party.
Upon payment of Final Distributions and similar amounts to the
holders of each class of Senior Certificates and (unless a Policy
Provider
Default has occurred and is continuing under each Policy) of the
Policy Provider
Amounts (other than any amount referred to in clause (c) of the
definition of
Excess Reimbursement Obligations) to each Policy Provider, the
Junior Trustee
for the Class of Junior Certificates which has the largest
outstanding Pool
Balance shall be the Controlling Party.
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, the Primary Liquidity Provider which
satisfies the conditions specified in either clause (i) or (ii)
below and which
has the largest outstanding amount of Liquidity Obligations owed to
it shall
have the right, by giving Written Notice to the Subordination
Agent, to become
the Controlling Party, provided, that, in the case of clause (i)
below, there is
no other Policy Provider that shall become the Leading Policy
Provider upon the
Policy Provider Default referenced therein:
(i)
in the case of any Insured Primary Liquidity Provider, at
any time after the applicable Liquidity Provider Reimbursement
Date, if a Policy
Provider Default attributable to a
28
failure to make a drawing to pay such Primary Liquidity Provider is
continuing,
so long as such Primary Liquidity Provider has not defaulted in its
obligation
to make any advance under the applicable Insured Primary Liquidity
Facility
shall have the right to become the Controlling Party; or
(ii)
in the case of any Primary Liquidity Provider not entitled
to the benefits of a Policy (and which has the largest amount of
unpaid
Liquidity Obligations owed to it of all the Primary Liquidity
Providers not
entitled to the benefits of a Policy), at any time after the
applicable
Liquidity Provider Reimbursement Date unless the applicable Policy
Provider that
is then acting as the Controlling Party pays, within 15 Business
Days after the
receipt of written notice from such Primary Liquidity Provider
satisfying the
foregoing provisions of this clause (ii) and electing to become the
Controlling
Party (a "Potential Controlling Liquidity Provider"), to such
Potential
Controlling Liquidity Provider all outstanding drawings and
interest thereon
owing to such Potential Controlling Liquidity Provider under the
applicable
Primary Liquidity Facility including all interest accrued thereon
to such date.
(d)
Subject to clause (b) above and the rights of any applicable
Primary Liquidity Provider under clause (c) above, following the
surrender of
all Policies to the applicable Policy Providers for cancellation
and the payment
in full of all Policy Provider Amounts
