Exhibit 4.5
EXECUTION VERSION
(MULTICURRENCY - CROSS BORDER)
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
MASTER AGREEMENT
dated as of November 14, 2006
between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC., and WILMINGTON TRUST COMPANY,
a corporation organized under the laws a Delaware banking corporation,
of the State of Delaware in its capacity as Subordination
Agent on behalf of the Trustee
("PARTY A") under the JetBlue Airways (Spare
Parts) G-1 Pass Through Trust
("PARTY B")
PART 1
TERMINATION PROVISIONS
(a) SPECIFIED ENTITY. None.
(b) SPECIFIED TRANSACTION. Specified Transaction will have the meaning
specified in Section 14.
(c) EVENTS OF DEFAULT. The "Events of Default" set forth in Section 5(a) will
not apply to Party B but will apply to Party A (subject to clause (d)
below).
(d) CROSS DEFAULT. The "Cross Default" provision of Section 5(a)(vi) will not
apply.
(e) TERMINATION EVENTS. The "Illegality" provisions of Section 5(b)(i), the
"Tax Event" provisions of Section 5(b)(ii), the "Tax Event Upon Merger"
provisions of Section 5(b)(iii) and the "Credit Event Upon Merger"
provisions of Section 5(b)(iv) will apply to Party A but will not apply to
Party B. Party A shall be the sole Affected Party (under Section 5(b)(i),
(ii) and 5(b)(iv)) and the sole Burdened Party (under Section 5(b)(iii))
with respect to a Termination Event.
(f) CREDIT EVENT UPON MERGER. The "Credit Event Upon Merger" provisions in
Section 5(b)(iv) are hereby amended by: (I) deleting in the fourth line
thereof the words "another entity" and replacing them with the words "or
reorganizes, incorporates, reincorporates, reconstitutes, or reforms into
or as, or receives all or substantially all of the assets and/or
liabilities or obligations of, another entity or X, such Credit Support
Provider, or such Specified Entity, as the case may be,"; (II) deleting in
the fifth line thereof the words "the resulting, surviving or transferee"
and replacing them with the words "X, such Credit Support Provider, or such
Specified Entity, as the case may be, or any resulting, surviving,
transferee, reorganized, reconstituted or reformed"; and
(III) deleting in the seventh line thereof the words "its successor or
transferee" and replacing them with the words "any resulting, surviving,
transferee, reorganized, reconstituted or reformed entity".
(g) AUTOMATIC EARLY TERMINATION. The "Automatic Early Termination" provision of
Section 6(a) will not apply.
(h) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT. Sections 6(b)(ii)-(iv) are
deleted in their entirety and replaced by the following:
"(ii) REPLACEMENT ON TERMINATION EVENT. Upon the occurrence of a
Termination Event with respect to Party A, Party A shall have the right
within 20 days of the date of such Termination Event, at its own expense,
to arrange for one or more Replacement Above-Cap Liquidity Providers to
enter into and deliver to Party B a Replacement Above-Cap Liquidity
Facility for such Above-Cap Liquidity Facility. If Party A does not arrange
for such replacement and if the Above-Cap Liquidity Facility has not
otherwise been replaced by JetBlue Airways Corporation (at the expense of
JetBlue Airways Corporation) in accordance with the terms of Section
3.5(c)(iv) of the Intercreditor Agreement, such 20th day (or if such 20th
day is not a Business Day, the next succeeding Business Day) shall be
designated an "Early Termination Date" and Party A shall make a termination
payment to Party B in accordance with Part 1(j) of this Schedule. For the
avoidance of doubt, Party B shall have no right to designate an Early
Termination Date following the occurrence of any Termination Event."
(i) CALCULATIONS. The "Payment Date" provisions in Section 6(d)(ii) are deleted
in their entirety and replaced by the following:
"The Termination Amount calculated as being due in respect of any Early
Termination Date under Section 6(e) will be payable on such Early
Termination Date."
(j) PAYMENTS ON EARLY TERMINATION. Section 6(e) is deleted in its entirety and
replaced with the following:
"Upon the designation or deemed designation of an Early Termination Date,
including pursuant to clause 4(i) or (ii) of the Confirmation, with respect
to the Transaction evidenced by the Confirmation, Party A shall make a
termination payment to Party B on the Early Termination Date in an amount
equal to the "Termination Amount" for the Early Termination Date for credit
to the Above-Cap Collateral Account (as provided in Section 3.5(f) of the
Intercreditor Agreement) to be applied as set forth in such Section 3.5(f)
plus all Unpaid Amounts due and payable by Party A under the Confirmation
on or prior to the Early Termination Date and upon such payments the
Transaction evidenced by the Confirmation shall terminate."
"Termination Amount" means, for any Early Termination Date, the amount
obtained by solving the following formula for TA:
TA = (20% per annum - CR) x N x F
where
CR = the Cap Rate designated in the Confirmation
N = the Notional Amount for such date
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F = 0.256
(k) TERMINATION CURRENCY. "Termination Currency" means United States Dollars.
(l) ADDITIONAL TERMINATION EVENT. Additional Termination Event will not apply.
(m) LIMITATIONS ON CONDITIONS PRECEDENT. Notwithstanding Section 2(a), the
obligation of Party A to make each payment specified in the Confirmation
shall not be subject to any conditions precedent other than as specified in
such Confirmation, and, without limiting the foregoing, Party A agrees that
it will make each such payment without offset, counterclaim or defense.
PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e), Party A and
Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e) or 6(e)) to be made by it
to the other party under this Agreement. In making this representation, it
may rely on:
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i)
or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d);
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii), and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f),
(i) Party A represents that it is a corporation organized under the laws
of the State of Delaware.
(ii) Party B represents that it is a Delaware banking corporation.
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(ii) of this Agreement, each party agrees to
deliver the following documents, as applicable:
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COVERED BY
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO BE SECTION 3(d)
DELIVER DOCUMENTS CERTIFICATE DELIVERED REPRESENTATION
------------------- --------------------------------- ---------------------- --------------
Party A and Party B Evidence reasonably satisfactory Upon execution of this Yes
to the other party as to the Agreement and the
names, true signatures and related Confirmation
authority of the officer or
officials signing this Agreement
or the Confirmation on its behalf
Party A Opinions of counsel to Party A Upon execution of this No
and its Credit Support Provider Agreement
reasonably satisfactory in form
and substance to Party B with
respect to this Agreement and the
Credit Support Document specified
in Part 4(e)
Party B Certified copies of all documents Upon execution of this Yes
evidencing the necessary Agreement
corporate authorizations and
approvals with respect to the
execution, delivery, and
performance of derivatives
transactions
Party A Correct, complete and executed Upon execution of this Not applicable
U.S. Internal Revenue Form W-9 or Agreement, upon the
any successor thereto appointment of a
successor
Subordination Agent,
and at any time upon
reasonable request by
Party B
Party B Correct, complete and executed Upon execution of this Not applicable
U.S. Internal Revenue Form W-9 or Agreement, upon the
any successor thereto appointment of a
successor
Subordination Agent,
and at any time upon
reasonable request by
Party A
Party A Credit Support Document specified Upon execution of this Yes
in Part 4(e) Agreement
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) Address for notices or communications to Party A (including all
notices pursuant to
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Sections 5, 6 and 7 as well as any changes to Party B's address,
telephone number or facsimile number):
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services Inc.
Transaction Management Group
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Legal Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(ii) Address for notices or communications to Party B:
Address: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(c) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) CALCULATION AGENT. The Calculation Agent is Party A, provided that if Party
B disagrees with respect to any calculation or determination, Party A and
Party B each will appoint an independent Reference Market-maker, and such
two Reference Market-makers jointly will appoint a third Reference
Market-maker. Such three Reference Market-makers jointly will make such
calculation or determination (acting as experts and not as arbitrators),
whose calculation or determination will be binding and conclusive absent
manifest error. In addition, if an Event of Default with respect to Party A
has occurred and is continuing, Party B may appoint one of the following
five entities as Calculation Agent: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, UBS AG, Bank of
America, N.A., Deutsche Bank AG or Citibank, N.A.
(e) CREDIT SUPPORT DOCUMENTS. Party A shall deliver an unconditional and
irrevocable guarantee dated as of November 14, 2006 from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with respect to Party A's obligations under this Transaction for the
benefit of Party B and such guarantee shall be a Credit Support Document
with respect to Party A.
With respect to Party B: None.
(f) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Credit Support Provider means in relation to Party B: None.
(g) GOVERNING LAW. This Agreement and the Confirmation will be governed by and
construed in
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accordance with the laws of the State of New York.
(h) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting
the final paragraph thereof.
(i) NETTING OF PAYMENTS. The Netting provision set forth in Section 2(c) will
not apply to any Transaction.
(j) AFFILIATE. Affiliate will have the meaning specified in Section 14,
provided that the definition of Affiliate in relation to Party A does not
include ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Derivative Products, Inc.
(k) COVERED TRANSACTION. The Transaction evidenced by the Confirmation dated
the date of this Agreement (Reference Number: SQCF7) will constitute the
only Transaction and Confirmation supplementing, forming part of, and
subject to, this Agreement.
PART 5
OTHER PROVISIONS
(a) DEFINITIONS. This Agreement and the Transaction between the parties are
subject to the 2000 ISDA Definitions and Annex to the 2000 ISDA Definitions
(June 2000 Version) as published by the International Swaps and Derivatives
Association, Inc. (collectively, the "Definitions"), and will be governed
in all relevant respects by the provisions set forth in the Definitions,
without regard to any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are incorporated by reference in
and shall be deemed a part of this Agreement, except that references in the
Definitions to a "Swap Transaction" shall be deemed references to a
"Transaction" for purposes of this Agreement. In the event of any
inconsistency between the provisions of this Agreement and the Definitions,
this Agreement will prevail. "Intercreditor Agreement" as used in this
Agreement shall mean the Intercreditor Agreement dated as of November 14,
2006 among Wilmington Trust Company, 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 such 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 thereto as therein provided and Wilmington
Trust Company, as Subordination Agent, attached hereto as Exhibit A.
Capitalized terms used and not defined herein, in the Confirmation, or in
the Definitions shall have the meanings set forth in the Intercreditor
Agreement, as amended or modified from time to time in accordance with the
terms thereof, as each such term relates to, and is used in the context of,
the Class G-1 Certificates and not to any other Class of Certificates.
(b) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to the
other party on the date on which it enters into the Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account, and it has made its own
independent decisions to enter into the Transaction and as to whether the
Transaction is appropriate or proper for it based upon its own judgment and
upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into the Transaction; it
being understood that
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information and explanations related to the terms and conditions of the
Transaction shall not be considered investment advice or a recommendation
to enter into the Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee as to
the expected results of the Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits of
and understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
the Transaction. It is also capable of assuming, and assumes, the risks of
the Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of the Transaction.
(c) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHT TO JURY
TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR THE TRANSACTION.
(d) NON-PETITION. Party A agrees that it will not, prior to the date that is
one year and one day following the final payment of the Certificates,
acquiesce, petition or otherwise invoke or cause, or join in invoking or
causing, Party B or any other person or entity to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
(whether voluntary or involuntary) against Party B under any bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Party B or
any substantial part of its property or ordering the winding-up or
liquidation of the affairs of Party B, provided, however, that nothing
herein shall restrict or prohibit Party A from joining in any existing
bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings or other analogous proceedings under applicable
laws.
(e) WAIVER OF RIGHT OF SET-OFF. Notwithstanding any provision of this
Agreement, the Confirmation or any other existing or future agreement
between the parties hereto, each party irrevocably waives any and all
rights it may have to set-off, net, recoup or otherwise withhold or suspend
or condition payment or performance of any obligation between the two
parties hereunder against any obligations between the two parties, whether
arising under any agreement, applicable law or otherwise.
(f) AMENDMENTS. This Agreement is hereby further amended as follows:
(1) Section 2(b) is hereby amended by the insertion of the following at
the end thereof after the word "change": "provided that if such new
account shall not be in the same jurisdiction having the same power to
tax as the original account, the party not changing its account shall
not be obliged to pay any greater amounts and shall not receive less
as a result of such change than would have been the case if such
change had not taken place".
(2) Section 2(d) is amended by adding thereto a new final sentence reading
as follows: "Anything in this Section 2(d) to the contrary
notwithstanding, Party B shall not be obligated to make any payment
under this Section 2(d) to Party A."
(3) Section 7 is amended by adding a new penultimate sentence to Section 7
as follows: "Any purported transfer under this Section 7 shall require
Ratings Confirmation, including, for the avoidance of doubt, any
transfer pursuant to Section 6(b)(ii)".
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(4) Section 9(b) is amended by adding thereto a new sentence reading as
follows: "In addition, no amendment, modification or waiver in respect
of this Agreement will be effective unless Ratings Confirmation is
received".
(g) LIMITATION OF LIABILITY. The obligations of Party B under this Agreement,
and in respect of the Transaction evidenced by the Confirmation, are
expressly limited to the extent of funds, if any, made available for such
payment to Party B under, and in accordance with, the priorities of
payments set forth in Sections 3.2 and 3.5 of the Intercreditor Agreement.
No recourse under any obligation, covenant or agreement of Party B
contained in this Agreement or the Confirmation shall be had against any
incorporator, stockholder, agent, affiliate, officer, employee or trustee
of Party B, as such, by the enforcement of any assessment or by any legal
or equitable proceeding, by virtue of any statute or otherwise; it being
expressly agreed and understood that the agreements of Party B contained in
this Agreement or the Confirmation are solely trust obligations of Party B
and that no personal liability whatsoever shall attach to or be incurred by
the incorporators, stockholders, agents, affiliates, officers, employees or
trustees of Party B, as such, or any of them, under or by reason of any of
the obligations, covenants or agreements of Party B contained in this
Agreement or the Confirmation and that any and all personal liability of
every such incorporator, stockholder, agent, affiliate, officer, employee
or trustee of Party B for breaches by Party B of any such obligation,
covenant or agreement, which liability may arise either at common law or at
equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement; provided, however, that nothing in this paragraph shall relieve
any of the foregoing persons from any liability which any such person may
otherwise have for his/her or its gross negligence or willful misconduct
or, with respect to the handling or transfer of funds, ordinary negligence.
(h) ELIGIBLE CONTRACT PARTICIPANT. Each party represents to the other that it
is an "eligible contract participant" as defined in Section 1a(12) of the
Commodity Exchange Act of 1922 (7 U.S. Code Section 1 et seq.), as amended
("CEA"). This Agreement and the Transaction hereunder are subject to
individual negotiation by the parties. Neither this Agreement nor the
Transaction hereunder has been executed or traded on a "trading facility"
as defined in Section 1a(33) of the CEA.
(i) ACCURACY OF SPECIFIED INFORMATION. Section 3(d) is hereby amended by adding
in the third line thereof after the word "respect" and before the period
the words "or, in the case of audited or unaudited financial statements or
balance sheets, a fair representation of the financial condition of the
relevant person".
[Signatures follow on separate pages]
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IN WITNESS WHEREOF the parties have executed this Schedule to the ISDA
Master Agreement on the respective dates specified below with effect from the
date specified on the first page of this document.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERVICES INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Above-Cap Schedule to the ISDA Master Agreement
WILMINGTON TRUST COMPANY
in its capacity as Subordination Agent
on behalf of the Trustee under the
JetBlue Airways (Spare Parts) G-1 Pass
Through Trust
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Above-Cap Schedule to the ISDA Master Agreement
EXHIBIT A
INTERCREDITOR AGREEMENT