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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-K

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2011

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission file number 000-49728

JETBLUE AIRWAYS CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware   87-0617894

(State or other jurisdiction of

incorporation or organization)

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

118-29 Queens Boulevard

Forest Hills, New York 11375

(Address, including zip code, of registrant’s principal executive offices)

(718) 286-7900

Registrant’s telephone number, including area code:

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name of each exchange

on which registered

Common Stock, $0.01 par value   The NASDAQ Global Select Market
Participating Preferred Stock Purchase Rights  

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   x     No   ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes   ¨     No   x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by checkmark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   ¨

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

 

Large accelerated filer    x    Accelerated filer    ¨
Non-accelerated filer    ¨    Smaller reporting company    ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant as of June 30, 2011 was approximately $2,078,666,000 (based on the last reported sale price on the NASDAQ Global Select Market on that date). The number of shares outstanding of the registrant’s common stock as of January 31, 2012 was 282,068,233 shares.

 

 

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the Registrant’s Proxy Statement for its 2012 Annual Meeting of Stockholders, which is to be filed subsequent to the date hereof, are incorporated by reference into Part III of this Form 10-K.


Table of Contents

Table of Contents

 

PART I.   

Item 1.

  

Business

     1   
  

Overview

     1   
  

Our Value Proposition

     2   
  

Our Industry and Competition

     9   
  

Aircraft Fuel

     10   
  

Maintenance

     10   
  

LiveTV, LLC

     11   
  

Government Regulation

     11   
Item 1A.   

Risk Factors

     14   
  

Risks Related to JetBlue

     14   
  

Risks Associated with the Airline Industry

     20   
Item 1B.   

Unresolved Staff Comments

     22   
Item 2.   

Properties

     23   
Item 3.   

Legal Proceedings

     25   
Item 4.   

Mine Safety Disclosures

     25   
  

Executive Officers of the Registrant

     26   
PART II.      
Item 5.   

Market for Registrant’s Common Equity; Related Stockholder Matters and Issuer Purchases of Equity Securities

     27   
Item 6.   

Selected Financial Data

     29   
Item 7.   

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     32   
  

Overview

     32   
  

Outlook for 2012

     35   
  

Results of Operations

     35   
  

Liquidity and Capital Resources

     42   
  

Contractual Obligations

     44   
  

Off-Balance Sheet Arrangements

     46   
  

Critical Accounting Policies and Estimates

     46   
Item 7A.   

Quantitative and Qualitative Disclosures About Market Risk

     49   
Item 8.   

Financial Statements and Supplementary Data

     50   
  

Consolidated Balance Sheets

     50   
  

Consolidated Statements of Operations

     52   
  

Consolidated Statements of Cash Flows

     53   
  

Consolidated Statements of Stockholders’ Equity

     54   
  

Notes to Consolidated Financial Statements

     55   
  

Reports of Independent Registered Public Accounting Firm

     85   
Item 9.   

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

     87   
Item 9A.   

Controls and Procedures

     87   
Item 9B.   

Other Information

     87   
PART III.      
Item 10.   

Directors, Executive Officers and Corporate Governance

     88   
Item 11.   

Executive Compensation

     88   
Item 12.   

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

     88   
Item 13.   

Certain Relationships and Related Transactions, and Director Independence

     88   
Item 14.   

Principal Accounting Fees and Services

     89   
PART IV.      
Item 15.   

Exhibits and Financial Statement Schedules

     90   

 

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FORWARD-LOOKING INFORMATION

Statements in this Form 10-K (or otherwise made by JetBlue or on JetBlue’s behalf) contain various forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, which represent our management’s beliefs and assumptions concerning future events. When used in this document and in documents incorporated herein by reference, the words “expects,” “plans,” “anticipates,” “indicates,” “believes,” “forecast,” “guidance,” “outlook,” “may,” “will,” “should,” “seeks,” “targets” and similar expressions are intended to identify forward-looking statements. Forward-looking statements involve risks, uncertainties and assumptions, and are based on information currently available to us. Actual results may differ materially from those expressed in the forward-looking statements due to many factors, including, without limitation, our extremely competitive industry; increases and volatility in fuel prices, increases in maintenance costs and interest rates; our ability to implement our growth strategy; our significant fixed obligations and substantial indebtedness; our ability to attract and retain qualified personnel and maintain our culture as we grow; our reliance on high daily aircraft utilization; our dependence on the New York metropolitan market and the effect of increased congestion in this market; our reliance on automated systems and technology; our being subject to potential unionization, work stoppages, slowdowns or increased labor costs; our reliance on a limited number of suppliers; our presence in some international emerging markets that may experience political or economic instability or may subject us to legal risk; reputational and business risk from information security breaches; a negative impact on the JetBlue brand; the long term nature of our fleet order book; changes in or additional government rules, regulations or laws; changes in our industry due to other airlines’ financial condition; the impact on our growth because of economic difficulties in Europe through a continuance of the economic recessionary conditions in the U.S. or a further economic downturn leading to a continuing or accelerated decrease in demand for domestic and business air travel; and external geopolitical events and conditions. It is routine for our internal projections and expectations to change as the year or each quarter in the year progresses, and therefore it should be clearly understood that the internal projections, beliefs and assumptions upon which we base our expectations may change prior to the end of each quarter or year. Although these expectations may change, we may not inform you if they do.

You should understand that many important factors, in addition to those discussed or incorporated by reference in this report, could cause our results to differ materially from those expressed in the forward-looking statements. Potential factors that could affect our results include, in addition to others not described in this report, those described in Item 1A of this report under “Risks Related to JetBlue” and “Risks Associated with the Airline Industry.” In light of these risks and uncertainties, the forward-looking events discussed in this report might not occur.

 

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ITEM 1. BUSINESS

Overview

JetBlue Airways Corporation is a passenger airline that we believe has established itself as a “value airline” which, reflective of its customer base and network, provides a superior core product for a price and at a cost that enables JetBlue to profitably grow. Known as much for its award-winning customer service and free TV as for its competitive fares, JetBlue believes it offers its customers the best main cabin product in markets it serves with a strong core product and reasonably priced optional upgrades. JetBlue operates primarily on point-to-point routes with its fleet of 120 Airbus A320 aircraft and 49 EMBRAER 190 aircraft — one of the youngest and most fuel-efficient fleet of any major U.S. airline. As of December 31, 2011, we served 70 destinations in 22 states, Puerto Rico, Mexico and 12 countries in the Caribbean and Latin America. JetBlue is New York’s Hometown Airline ™ with most of our flights having as an origin or destination New York or one of our other focus cities: Boston, Fort Lauderdale, Los Angeles, Orlando or San Juan, Puerto Rico. By the end of 2011, we operated an average of 700 daily flights. For the year ended December 31, 2011, JetBlue was the 6 th largest passenger carrier in the United States based on revenue passenger miles as reported by these passenger airlines. As used in this Form 10-K, the terms “JetBlue”, “we”, “us”, “our” and similar terms refer to JetBlue Airways Corporation and its subsidiaries, unless the context indicates otherwise.

JetBlue was incorporated in Delaware in August 1998 and commenced service February 11, 2000. Our principal executive offices are located at 118-29 Queens Boulevard, Forest Hills, New York 11375 and our telephone number is (718) 286-7900. As of March 5, 2012, our principal executive offices are moving to 27-01 Queens Plaza North, Long Island City, New York 11101.

Where You Can Find Other Information

Our website is www.jetblue.com. Information contained on our website is not part of this report. Information that we furnish or file with the SEC, including our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any amendments to or exhibits included in these reports are available for download, free of charge, on our website soon after such reports are filed with or furnished to the SEC. Our SEC filings, including exhibits filed therewith, are also available at the SEC’s website at www.sec.gov. You may obtain and copy any document we furnish or file with the SEC at the SEC’s public reference room at 100 F Street, NE, Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the SEC’s public reference facilities by calling the SEC at 1-800-SEC-0330. You may request copies of these documents, upon payment of a duplicating fee, by writing to the SEC at its principal office at 100 F Street, NE, Room 1580, Washington, D.C. 20549.

 

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Our Value Proposition

Our mission is to bring humanity back to air travel. We continue to work toward our goal to become “the Americas’ Favorite Airline” – for our employees (whom we refer to as Crewmembers), customers and shareholders. We believe achieving this goal is dependent upon continuing to provide superior customer service in delivering the JetBlue Experience while maintaining financial strength and a cost structure that enables profitable growth in the markets we serve. To do this, we aim to leverage three main building blocks of our business model: culture, offerings and foundations. Culture involves our people and we believe ours is one of our key differentiators in the airline industry. Offerings encompass how and where we offer the JetBlue Experience to our customers and other stakeholders through our strong network and award-winning product and service. Foundations are the basis upon which our airline runs, including processes and systems, and a strong financial foundation, with a strong balance sheet, liquidity and cost structure. We strive to maintain our strong and vibrant service-oriented company culture built around our five key values: Safety, Caring, Integrity, Fun and Passion.

Our History

JetBlue began operations in 2000 as a well-funded start-up, which afforded us the ability to make significant investments in our product offerings, including all new aircraft equipped with leather seats and LiveTV. This product investment combined with superior customer service at low fares led to early success, predominantly with leisure travelers in New York. By the end of 2006, JetBlue employed over 10,000 Crewmembers, operated 500 daily flights with a fleet of 119 aircraft and generated annual revenues exceeding $2 billion. However, a heavy debt load taken on to finance our rapid growth, a wide-spread economic recession and record high energy prices led to two consecutive years of annual losses. It was clear that this rate of growth, as then reflected in our aircraft order book, if not interrupted, was unsustainable. We adjusted our business model first by selling used aircraft and by significantly reducing and deferring a portion of our aircraft order book. Additionally, we began to invest in offerings targeted to attract a higher mix of business travelers, particularly in Boston.

We are the only major U.S. airline which began operations post-deregulation to survive into a second decade of operation on our own. Our continued success is dependent upon our ability to adapt to an ever-changing environment and we believe we are well positioned to do just that.

Culture

We believe one of our competitive strengths is our service-oriented culture. Our company culture places value upon and stresses the importance of providing high quality customer service through a productive, engaged workforce that helps keep our costs low and, ultimately, achieve our financial goals. Our success depends on our people and their capabilities, individually and collectively, living our values and delivering the best customer service experience. We believe we carefully select, train and maintain a flexible and diverse workforce of caring, passionate, fun and friendly people who want to provide our customers with the best experience possible. Further, our historical experience and numerous surveys indicate that customer satisfaction and the likelihood of returning customers can be directly linked to experiences with happy and engaged employees.

Our ability to continue hiring, retaining, and developing people who are committed to delivering the JetBlue Experience to our customers is a key component to maintaining the culture we have built. Our culture is first introduced to all new employees through a screening process and an extensive orientation program which emphasizes the importance of customer service, productivity and cost control. We reinforce the importance of this culture by providing continuous training for our employees, including technical training, a leadership program, training that is focused on the safety value and front line training for our customer service teams.

We are focused on the efficiency and productivity of our Crewmembers. Flexible and productive work rules, effective use of part-time employees and increasing use of technology to automate tasks each contribute to workforce productivity. We are continually looking for ways to make our workforce more efficient through the

 

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use of technology without compromising our commitment to customer service or safety. Through ongoing collaboration with our internal Values Committees, which have been established for each of our major work groups, we ensure we have the input of peer-elected frontline Crewmembers to help us manage and run the business in the most productive and efficient way.

None of our employees are currently unionized. We believe a direct relationship between JetBlue employees and its leaders – not third-party representation – is in the best interests of our employees, customers and shareholders. We enter into individual employment agreements with each of our Federal Aviation Administration, or FAA, licensed employees, which consist of pilots, dispatchers, technicians and inspectors. These agreements are intended to drive higher levels of engagement and alignment with the Company’s financial success. Each employment agreement is for a term of five years and renews for an additional five-year term unless the employee is terminated for cause or the employee elects not to renew. Pursuant to these agreements, these employees can only be terminated for cause. In the event of a downturn in our business that would require a reduction in work hours, we are obligated to pay these employees a guaranteed level of income and to continue their benefits. In addition, we provide what we believe to be industry-leading job protection language in the agreements in the event of a merger or acquisition, including the establishment of a legal defense fund to use for seniority integration negotiations.

Our leadership team has extensive and diverse airline industry experience. They strive to communicate on a regular basis with all JetBlue employees. They believe in maintaining a direct relationship with all employees and keeping them informed about results and challenges affecting the airline. Effective and frequent communication throughout the organization is fostered through various means, including periodic employee satisfaction surveys, a quarterly magazine, active leadership participation in new hire orientations and periodic open forum meetings across our network, called “pocket sessions,” which are often videotaped and posted on our intranet. By soliciting feedback for ways to improve our service, teamwork and work environment, our leadership team strives to keep Crewmembers engaged and make our business decisions transparent.

Our full-time equivalent employees at December 31, 2011 consisted of 2,168 pilots, 2,326 flight attendants, 3,560 airport operations personnel, 509 technicians (whom others refer to as mechanics), 805 reservation agents, and 2,726 management and other personnel. At December 31, 2011, we employed 10,243 full-time and 3,779 part-time employees.

Offerings

We believe we offer our customers a distinctive flying experience, which we refer to as the “JetBlue Experience” by offering what we believe to be the best domestic core product and providing our customers more value for their purchases. Our marketing objectives are to attract new customers to our brand and give our current customers reasons to come back to us time and time again. A key objective of ours is that competitive fares and quality air travel need not be mutually exclusive. Our competitive fares, high quality product and outstanding customer service create the overall JetBlue Experience that we believe is unique in the domestic airline industry. Key to what we offer to our customers is how and where we offer our service while maintaining a low cost structure relative to our network and superior product level.

High Quality Service and Product.     Onboard JetBlue, customers enjoy new aircraft with roomy leather seats and more legroom than other domestic airlines provide in their coach (and on some, premium) service. Our aircraft’s inflight entertainment systems include 36 channels of free DirecTV ® , 100 channels of free XM satellite radio and premium movie channel offerings from JetBlue Features ® , our source of first run films. Our onboard offerings also include an assortment of free and unlimited brand name snacks and beverages. Additionally, customers can purchase premium beverages and food selections and specially-tailored products for overnight flights.

All of our aircraft are equipped with leather seats in a comfortable single class layout. Our Airbus A320 aircraft, with 150 seats, has a wider cabin than both the Boeing 737 and 757, aircraft operated by many of our

 

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competitors. Our EMBRAER 190 aircraft each have 100 seats that are wider than industry average for this type of aircraft and are arranged in a two-by-two seating configuration. We offer the most legroom in the main cabin of all U.S. airlines in our Even More Space rows.

We believe our strong brand and the JetBlue Experience are key elements of our continued success. To that end, we continually seek to enhance and refine our product and service offerings. During 2011, we re-branded and expanded our popular Even More Legroom offering, now known as Even More Space, to include extra legroom plus early boarding and early access to overhead bin space. Additionally, we introduced Even More Speed, which offers customers the option to enjoy an expedited security experience in select JetBlue airports. Throughout 2011 and 2012, we began offering the Even More Speed expedited security option in over 30 cities. We will continue to offer this convenient service in additional cities as we work with airport authorities to introduce. During 2011, we executed an agreement with ViaSat Inc. to develop and introduce state of the art in-flight Ka broadband connectivity technology, offering the most speed and flexibility of any wi-fi technology currently available, which we plan to introduce on our aircraft beginning in late 2012.

We strive to communicate openly and honestly with customers about delays and service disruptions. We introduced the JetBlue Airways Customer Bill of Rights in 2007 which provides for compensation to customers who experience avoidable inconveniences (as well as some unavoidable circumstances) and commits us to perform at high service standards and holds us accountable if we do not. We are the first and currently the only U.S. major airline to provide such a fundamental benefit to customers. In 2011, we completed 98.2% of our scheduled flights. Unlike most other airlines, we have a policy of not overbooking our flights.

We market our services through advertising and promotions in various media forms, including using increasingly popular social media outlets. We engage in large multi-market programs, as well as many local events and sponsorships and mobile marketing programs. Our targeted public and community relations efforts reflect our commitment to the communities that we serve as well as promoting brand awareness and complementing our strong reputation.

The integrated customer service systems, which we implemented in early 2010, have enabled us to increase our capabilities including growing our current business, providing for more commercial partnerships and allowing us to attract more business customers. We continue to focus on ways to innovate and offer additional ancillary products that will be value added for our customers. We believe selective innovation and expansion of our offerings is critical to our future success.

Our primary and preferred distribution channel is through our website, www.jetblue.com , our lowest cost channel which is also designed to ensure our customers have as pleasant an experience booking their travel as they do in the air. Our participation in global distribution systems, or GDSs, supports our profitable growth in the corporate market, as business customers are more likely to book through a travel agency or booking product that uses a GDS platform. Although the cost of sales through this channel is higher than through our website, the average fare purchased through this channel is generally higher and often covers the increased distribution costs. We currently participate in four major GDSs (Sabre, Galileo, Worldspan and Amadeus) and four major online travel agents, or OTAs (Expedia, Travelocity, Orbitz, and Priceline).

We sell vacation packages through JetBlue Getaways TM , a one-stop, value-priced vacation website designed to meet customers’ demand for self-directed packaged travel planning. Getaways packages offer competitive fares for air travel on JetBlue and a selection of JetBlue-recommended hotels and resorts, car rentals and attractions. We also offer a la carte hotel and car rental reservations through our website, which generates ancillary service revenues.

Brand Strength.     JetBlue is a widely recognized and respected global brand, which we believe differentiates us from our competitors and identifies us as a safe, reliable, value-added airline. Our brand has become an important and valuable asset. Similarly, we believe customer awareness of our brand has contributed

 

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to the success of our marketing efforts and enables us to market ourselves as a preferred marketing partner with companies across many different industries. In 2011, we received several prestigious awards, including being voted “Top Low Cost Airline for Customer Satisfaction” by J.D. Power and Associates for the seventh consecutive year. We also earned distinctions as the “Best Coach-Class Experience”, “Most Customer-Friendly Airline” and “Best Value Airline-Domestic” in the SmarterTravel Editor’s Choice Awards for 2011.

Our customers have told us the JetBlue Experience is an important reason why they choose us over other airlines. We measure and monitor our customer feedback regularly to continuously improve customer satisfaction, a primary goal of ours. One way we do so is by measuring our net promoter score, or NPS, which is a standard metric used by many industries to gauge customer experience. According to Satmetrix, we were recognized as the leader in the 2011 Net Promoter Industry Benchmarks for customer loyalty in the airline category for the second consecutive year. Many of the leading brands which consumers are most familiar with receive high NPS scores and are recognized for great customer service. We believe a higher NPS score leads to customer loyalty and increased revenue.

Route Network.     We believe knowing our customers and understanding the purpose of their travel helps us optimize destinations, strengthen our route schedules and increase unit revenues. Historically, we have been a strong leisure focused airline, which resulted in high seasonality in our business. In recent years, we have become focused on increasing our relevance to the business customer, particularly in Boston, in order to balance some of this seasonality. Additionally, we have continued to profitably grow in Latin America and the Caribbean region, with a mix of leisure and visiting friends and relatives, or VFR, travelers. VFR travelers tend to be slightly less seasonal and more recession resistant than traditional leisure destinations. We have also expanded our portfolio of strategic commercial partnerships in recent years, which generate incremental customers throughout our network and help to balance our off-peak travel periods. We are focused on continuing to diversify our network and further reduce the seasonality by offering the optimal mix for those travelling for leisure, business, or visiting friends and relatives. Our operations primarily consist of transporting passengers on our aircraft with domestic U.S. operations, including Puerto Rico, accounting for 85% of our capacity in 2011. The historic distribution of our available seat miles, or capacity, by region is:

 

       Year Ended December 31,  

Capacity Distribution

   2011     2010     2009  

East Coast – Western U.S.

     32.4     34.5     34.7

Northeast – Florida

     32.2        31.4        32.8   

Medium – haul

     3.2        3.3        3.5   

Short – haul

     7.5        7.6        7.7   

Caribbean, including Puerto Rico

     24.7        23.2        21.3   
  

 

 

   

 

 

   

 

 

 

Total

     100.0     100.0     100.0
  

 

 

   

 

 

   

 

 

 

As of December 31, 2011, we provided service to 70 destinations in 22 states, Puerto Rico, Mexico, and 12 countries in the Caribbean and Latin America. We have begun service to the following new destinations since December 31, 2010:

 

Destination

   Service Commenced
Providenciales, Turks & Caicos    February 2011
Anchorage, Alaska    May 2011
Martha’s Vineyard, Mass.    May 2011
La Romana, Dominican Republic    November 2011
Liberia, Costa Rica    November 2011
St. Croix, U.S. Virgin Islands    December 2011
St. Thomas, U.S. Virgin Islands    December 2011

 

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In 2011, we acquired eight take-off and landing slots at each of New York’s LaGuardia Airport and Washington D.C.’s Ronald Reagan National Airport. We plan to begin our expanded service at each of these airports in 2012. Further, we intend to begin service between Dallas/Fort Worth, TX and Boston in May 2012.

In considering new markets, we generally focus on those markets that are either underserved or have high average fares. As a part of this process, we analyze publicly available data from the Department of Transportation, or DOT, showing the historical number of passengers, capacity and average fares over time. Using this data, combined with our knowledge and experience about how comparable markets have reacted in the past when prices were increased or decreased, we forecast the expected level of demand that may result in a particular market from our introduction of service and lower prices, as well as the anticipated response of existing airlines in that market.

We are the leading carrier in number of flights flown per day between the New York metropolitan area and Florida. We also offer service to the most non-stop destinations of any carrier out of Boston. During 2011, we also became the largest carrier offering service in San Juan, Puerto Rico as well as in the Dominican Republic.

 

   

New York Metropolitan Area – the Nation’s Largest Travel Market.      Since 2000, the majority of our operations have originated in New York City, the nation’s largest travel market and the largest U.S. point of entry from international locations. We are the largest domestic airline at New York’s John F. Kennedy International Airport, or JFK, as measured by passengers and, by the end of 2011, our domestic operations at JFK accounted for nearly 40% of all domestic passengers at that airport. In addition to JFK, we serve Newark, NJ’s Liberty International Airport, New York’s LaGuardia Airport, Newburgh, NY’s Stewart International Airport and White Plains, NY’s Westchester County Airport. JFK is New York’s largest airport, with an infrastructure that includes four runways, large facilities and a convenient direct light-rail connection to the New York City subway system and the Long Island Rail Road. Operating out of the nation’s largest travel market, however, makes us susceptible to certain operational constraints.

In October 2008, we commenced operations at our new 26-gate terminal centrally located at JFK’s Terminal 5. Terminal 5 has an optimal location with convenient access to active runways which we believe increases the efficiency of our operations. We believe this terminal with its modern amenities, concession offerings and passenger conveniences has also improved the overall efficiency of our operation and, more importantly, has significantly enhanced the ground experience of our customers. The Terminal 5 experience has received numerous awards since its opening in 2008, most recently of which was being named one of the “World’s Most Beautiful Airport Terminals” by Frommer’s Travel in 2012.

 

   

Boston – New England’s Largest Transportation Center.     We are the largest carrier in terms of flights, seats offered, and available seat miles at Boston’s Logan International Airport, or Boston, another important travel market in the Northeast region, offering more destinations than any other airline. By the end of 2011, we operated from 17 gates at Boston and our domestic operations accounted for more than 20% of all domestic flights at that airport. At Boston, we continue to capitalize on opportunities in the changing competitive landscape by increasing our presence and relevance to local travelers, including notably, corporate travelers, and adding routes and frequencies, resulting in exponential growth for us over the past two years. During 2011, we continued to make investments in our Boston infrastructure including systems, ramp and maintenance facilities and other airport space to allow further expansion of our Boston footprint.

Our revamped TrueBlue customer loyalty program, the added benefits of our new customer service system implemented in early 2010, and product enhancements have allowed us to build our relevance to business customers, especially in Boston, where there is a significant business travel presence.

 

   

Caribbean and Latin America.     The growth of our route network since 2008 was primarily through the addition of new destinations in the Caribbean and Latin America, markets which have historically

 

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matured more quickly in terms of cash break-even and profitability than mainland flights of comparable distances. As of December 31, 2011, approximately 25% of our capacity was in the Caribbean and Latin America; we expect this number to continue to grow as we continue to seize opportunities. VFR traffic strongly complements leisure travel in the Caribbean region allowing for our profitable growth and success in this area of our network. Additionally, competitive landscape changes in San Juan, Puerto Rico have allowed us to increase significantly our presence. We continue to invest in our Caribbean operations, including introducing new intra-island service out of Puerto Rico. We are the largest airline in terms of seats and capacity serving all of Puerto Rico. During 2011, we began offering service to and from our fifth destination in the Dominican Republic and are now the largest airline in terms of capacity serving the Dominican Republic.

Commercial Partnerships.     Airlines frequently participate in marketing alliances which generally provide for code-sharing, frequent flyer program reciprocity, coordinated flight schedules that provide for convenient connections and other joint marketing activities. These commercial agreements are typically structured in one of three ways: 1) an interline agreement which allows for a customer to book one ticket with itineraries on multiple airlines; 2) a codeshare in which one airline places its name and flight number on flights operated by another airline; and 3) capacity purchase agreements. The benefits of broad networks offered to customers could attract more customers to these networks as well as our growing network. We currently participate in several marketing partnerships, primarily interline agreements, and will continue to seek additional strategic opportunities as they arise to leverage our strong network and drive incremental traffic and revenue. We believe these commercial partnerships help with yield management, which is improved with our commercial partnerships in a variety of ways, including the more advanced purchase than is typical of our own booking curve, the array of new destinations that we can provide to customers via connections to our airline partners, and the different of travel period helps us improve our off-peak periods.

Our partnerships, of which there are currently 16, are structured primarily using our New York’s JFK gateway with additional focus on Boston’s Logan International Airport, Newark, NJ’s Newark International Airport, Orlando, FL’s Orlando International Airport, Fort Myers, FL’s Southwest Florida International Airport, San Juan, Puerto Rico’s San Juan International Airport, Los Angeles, CA’s Los Angeles International Airport or Washington D.C.’s Dulles International Airport, allowing international travelers, whom we do not otherwise serve, to easily access many of our key domestic and Caribbean routes. Our partners include many notable international carriers, and we plan on continuing to add partners throughout 2012.

Customer Loyalty Program.     TrueBlue is an online program designed to reward and recognize our most loyal customers. The program offers incentives to increase members’ travel on JetBlue. TrueBlue members earn points based upon the amount paid for the flight. Member accounts accumulate points which do not expire as long as new flight points are earned at least once in a 12-month period. Redemption of points for a one-way flight can begin once a member attains as few as 5,000 points. There are no black-out dates or seat restrictions and any JetBlue destination can be booked if the member has enough points to exchange for the value of an open seat.

There were approximately 580,000 travel segments flown during 2011. TrueBlue award miles flown represent approximately 2% of our total revenue passenger miles. Since re-launching the TrueBlue program in November 2009, membership has increased approximately 30%.

We have an agreement with American Express under which they issue JetBlue co-branded American Express credit cards, allowing cardmembers to earn TrueBlue points. We have a separate agreement with American Express, which allows any American Express cardholder to convert their Membership Rewards points into TrueBlue points. Additionally, we have agreements with other loyalty partners, including hotels and car rental companies, which allow their customers to earn TrueBlue points through participation in the partners’ programs. We intend to pursue other loyalty partnerships in the future.

 

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Foundations

A strong financial foundation is vital to us in the realization of our profitable growth plans. A strong financial foundation is characterized by a strong liquidity position, a sustainable cost structure and active management of business risks, such as high jet fuel prices and interest rate risks among others.

Maintaining a strong financial foundation affords us staying power when entering and developing new markets and the flexibility to seize opportunities when presented, as was demonstrated by our slot purchases at LaGuardia and Reagan National Airports. Our solid liquidity has allowed us to invest in our service offerings, including inflight connectivity and the opportunistic investments in our route network. We believe a healthy cash balance is crucial to maintaining the ability to weather any part of the economic cycle while continuing to execute on our network strategy. We believe foundations are more than just financial and also include our underlying systems and processes, which enable us to deliver on the high quality customer service which is so important to our culture. Continued focus on our foundations is a critical component of our value proposition, including:

 

Low Cost Advantage.     Historically, our cost structure has allowed us to offer fares lower than many of our competitors. Our network strategy and growth requires a low cost platform. Therefore, we believe maintaining a low cost structure is fundamental to our sustainable growth and profitability. For the year ended December 31, 2011, our cost per available seat mile, excluding fuel, of 6.76 cents is among the lowest reported by all other major U.S. airlines. However, as our fleet and workforce age, it is increasingly difficult to maintain this marginal advantage relative to our competitors. Some of the factors that contribute to our cost advantage include:

 

   

High aircraft utilization.     By scheduling and operating our aircraft efficiently, we are able to spread our fixed costs over a greater number of flights and available seat miles. For the year ended December 31, 2011, our aircraft operated an average of 11.7 hours per day, which we believe is the highest among all major U.S. airlines. Our airport operations allow us to schedule our aircraft with minimum ground time.

 

   

New and efficient aircraft.      The average age of our fleet is only 6.1 years, which we believe is one of the youngest fleets of any major U.S. airline. Operating a new fleet and incorporating the latest technologies results in our aircraft being more efficient and dependable than older aircraft. We have the world’s largest fleet of Airbus A320 aircraft, and have among the best dispatch reliability in North America of large Airbus A320 operators. With jet fuel being our largest expense as well as the largest expense of our competitors, aircraft efficiency is a critical cost advantage. In 2011, we executed a new Airbus purchase agreement, which provides for, among other things, winglets on our A320 and new A321 aircraft, which we expect will make these aircraft even more fuel efficient. Another component of this agreement includes an order for 40 A320 new engine option, or A320neo, aircraft, which incorporate a revolutionary engine design that is expected to increase fuel efficiency by up to 16% compared to the current A320 design.

 

   

Limited fleet types.      We currently operate only two aircraft types, the Airbus A320 and the EMBRAER 190. Operating a limited number of aircraft types results in a cost advantage over competitors who operate more types as a result of simplified maintenance processes, reduced spare parts inventories and simplified scheduling and training among other efficiencies. Our new Airbus purchase agreement will double the number of aircraft types we operate; however the A320 neo and A321 are from the same A320 family of aircraft, which share many common parts.

 

   

Relatively low distribution costs.      Our website is our least expensive form of distribution. Since a majority of our customers use this form of booking travel, we have historically had low distribution costs. Given our increased participation in GDS and OTA, our distribution costs have increased over the past two years; however, we still maintain relatively low distribution costs.

 

   

Productive workforce.      Our employee efficiency results from flexible and productive work rules resulting from the direct relationship with our highly engaged employees. We believe our non-union workforce allows us increased flexibility, which in turn allows us to adapt more quickly in a changing

 

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environment. We also effectively use part-time employees and automate tasks through the use of technology to gain efficiencies.

Prudent investments. We believe in making investments that will deliver future benefits, preserve our low cost advantage and drive efficiency. In 2010, we implemented and integrated several customer service systems, including a reservations system, revenue management system, revenue accounting system and a customer loyalty management system among others. The integration of these systems has enabled us to increase our capabilities including growing our current business, providing for more commercial partnerships and allowing us to attract more business customers. We are investing in improved kiosk technology at our airports, which will result in increased airport efficiencies. We continue making infrastructure investments across our network. We plan to continue to make the necessary investments in Boston that will allow us to reach 150 flights per day and in San Juan that will allow us to reach 50 flights per day. We also plan to make substantial investments to several operational systems we use as well as to operational procedures that we believe will help to increase overall operational efficiencies.

Our Industry and Competition

The passenger airline industry in the United States is an extremely competitive and volatile industry, highly sensitive to GDP and economic perspectives. Traditionally, our industry has been dominated by the major U.S. airlines, the largest of which are United Air Lines, Delta Air Lines, American Airlines, Southwest Airlines and US Airways. The DOT defines the major U.S. airlines as those airlines with annual revenues of at least $1 billion; there are currently 12 passenger airlines, including us, meeting this standard. Five of the other major U.S. airlines are larger, have greater financial resources and serve more routes than we do. Passenger airlines can further be defined as either network, low-cost or regional airlines. Network carriers operate a significant portion of their flights using at least one hub where connections are made for flights on a spoke system. Low-cost carriers are those that the industry recognizes as operating under a low-cost business model, with lower infrastructure and aircraft operating costs and with less reliance on the hub-and-spoke system. Regional carriers provide service from small cities, using primarily regional jets to support the network carriers’ hub and spoke systems.  

Following the September 11, 2001 terrorist attacks, low-cost airlines, including ourselves, were able to fill a significant capacity void left by traditional network airline flight reductions. Lower fares and increased low-cost airline capacity created an unprofitable operating environment for the traditional network airlines. Since 2001, the majority of traditional network airlines have undergone significant financial restructuring, including bankruptcies, mergers and consolidations. In the past three years, there have been three significant mergers, which have changed the airline landscape: Delta Air Lines and Northwest Airlines merged in 2009; United Airlines and Continental Airlines merged in 2010; and Southwest Airlines merged with AirTran Airways in 2011. Most recently, American Airlines filed for bankruptcy protection in November 2011. Restructurings typically result in a reduction of labor costs, restructuring of debt, modification or termination of pension plans and general reductions in cost structure, increased workforce flexibility and innovative offerings similar to those of the low-cost airlines while anticipating significant opportunities to realign the expansive route networks, alliances and frequent flier programs.

While our costs remain lower than those of our largest competitors, the difference in the cost structures and the competitive advantage previously enjoyed by us and other low-cost airlines has diminished. Further industry consolidation or restructuring may result in our competitors having a more rationalized route structure and lower operating costs, enabling them to compete more aggressively.

The challenges of the airline industry are numerous. It is one of the most heavily taxed industries, extremely capital and energy intensive and it has a unique susceptibility to economic downturns, inclement weather, international events, natural disasters and acts of terrorism. The highly competitive nature of the airline industry makes airline profits sensitive to even slight changes in fuel costs, average fare levels and passenger demand. The principal competitive factors in the airline industry are fares, customer service, routes served, flight schedules, types of aircraft, safety record and reputation, code-sharing and interline relationships, capacity,

 

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in-flight entertainment systems and frequent flyer programs. In addition to the above challenges, industry capacity and pricing actions taken by other airlines historically have significantly influenced passenger demand and fare levels. During 2009, most traditional network airlines began to reduce capacity to overcome some of these challenges, particularly economic conditions and high fuel costs. Industry wide capacity discipline has continued throughout 2011, and we believe it will continue in 2012.

Price competition occurs through price discounting, fare matching, increased capacity, targeted sale promotions, ancillary fee additions and frequent flyer travel initiatives, all of which are usually matched by other airlines in order to maintain their share of passenger traffic. A relatively small change in pricing or in passenger traffic could have a disproportionate effect on an airline’s operating and financial results. Our ability to meet this price competition depends on, among other things, our ability to operate at costs equal to or lower than our competitors, including only charging for fees that we believe carry an intrinsic value for the customer. All other factors being equal, we believe customers often prefer JetBlue and the JetBlue Experience.

Aircraft Fuel

Fuel costs continue to be our largest operating expense, representing nearly 40% of our total operating costs in 2011. Fuel prices and availability are subject to wide fluctuations based on geopolitical factors and supply and demand that we can neither control nor accurately predict. We use a third party fuel management service to procure most of our fuel. Our historical fuel consumption and costs were as follows for the years ended December 31:

 

     2011     2010     2009  

Gallons consumed (millions)

     525        486        455   

Total cost (millions)

   $ 1,664      $ 1,115      $ 945   

Average price per gallon

   $ 3.17      $ 2.29      $ 2.08   

Percent of operating expenses

     39.8     32.4     31.4

Total cost and average price per gallon each include related fuel taxes as well as effective fuel hedging gains and losses.

Our goal with fuel hedging is to provide protection against significant and sharp increases in fuel prices by entering into a variety of hedging instruments including swaps, call options and collar contracts with underlyings of jet fuel and crude and heating oil. At December 31, 2011, we had hedged approximately 27% of our projected 2012 fuel requirements. We had no collateral posted related to margin calls on our outstanding fuel hedge contracts as of December  31, 2011.

Maintenance

Our FAA-approved maintenance program is administered by our technical operations department. Consistent with our core value of safety, we use qualified maintenance personnel, ensure they have comprehensive training and maintain our aircraft and associated maintenance records in accordance with, if not exceeding, FAA regulations.

The maintenance work performed on our fleet is divided into four general categories: aircraft line, aircraft heavy, component and power plant. The bulk of line maintenance requirements are handled directly by JetBlue technicians and inspectors and consist of daily checks, overnight and weekly checks, “A” checks, diagnostics and routine repairs. All other maintenance activity is sub-contracted to qualified business partner maintenance, repair and overhaul organizations.

Aircraft heavy maintenance checks consist of a series of more complex tasks that take from one to four weeks to accomplish. The typical frequency for these events is once every 15 months. We send our aircraft to FAA approved Aeroman facilities in El Salvador, Pemco in Tampa, Florida, Timco in Lake City, Florida and Embraer Aircraft Maintenance Services in Nashville, Tennessee. In all cases this work is performed with oversight by JetBlue personnel.

 

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Component and power plant maintenance, repairs and overhauls on equipment such as engines, auxiliary power units, landing gears, pumps and avionic computers are performed by a number of different FAA-approved repair stations. For example, maintenance of our V2500 series engines on our Airbus A320 aircraft is performed under a 15-year service agreement with MTU Maintenance Hannover GmbH of Germany. Many of our maintenance service agreements are based on a fixed cost per flying hour, which can vary based upon the age of the related component. Required maintenance that is not covered by one of our agreements is performed on a time and materials basis.

LiveTV, LLC

LiveTV, LLC, a wholly-owned subsidiary of JetBlue, provides in-flight entertainment, voice communication and data connectivity services for commercial and general aviation aircraft. LiveTV’s assets include certain tangible equipment and interests in systems installed on its customers’ aircraft, system components and spare parts in inventory, an air-to-ground spectrum license granted by the Federal Communications Commission, a network of approximately 80 ground stations across the continental U.S., and rights to certain patents and intellectual property. LiveTV’s major competitors in the in-flight entertainment systems market include Rockwell Collins, Thales Avionics and Panasonic Avionics. Only Panasonic is currently providing in-seat live television. In the voice and data communication services market, LiveTV’s primary competitors are GoGo, Row 44, Panasonic, OnAir and Aeromobile.

LiveTV has agreements with six other domestic and international commercial airlines for the sale and installation of certain hardware, programming and maintenance of its live in-seat satellite television as well as XM Satellite Radio service and certain other products and services. LiveTV also has general aviation customers to which it supplies voice and data communication services. LiveTV continues to pursue additional customers and related product enhancements. In 2011, JetBlue partnered with ViaSat Inc. to develop in-flight broadband connectivity, which LiveTV will help us to introduce on our aircraft beginning in 2013. LiveTV is also working with ViaSat Inc. to support inflight connectivity for other airlines in the future.

Government Regulation

General.     We are subject to regulation by the DOT, the FAA, the Transportation Security Administration, or TSA, and other governmental agencies. The DOT primarily regulates economic issues affecting air service such as certification and fitness, insurance, consumer protection and competitive practices. The DOT has the authority to investigate and institute proceedings to enforce its economic regulations and may assess civil penalties, revoke operating authority and seek criminal sanctions. In February 2000, the DOT granted us a certificate of public convenience and necessity authorizing us to engage in air transportation within the United States, its territories and possessions.

The FAA primarily regulates flight operations and, in particular, matters affecting air safety such as airworthiness requirements for aircraft, the licensing of pilots, mechanics and dispatchers, and the certification of flight attendants. The FAA requires each airline to obtain an operating certificate authorizing the airline to operate at specific airports using specified equipment. We have and maintain FAA certificates of airworthiness for all of our aircraft and have the necessary FAA authority to fly to all of the cities we currently serve.

Like all U.S. certified carriers, we cannot fly to new destinations without the prior authorization of the FAA. The FAA has the authority to modify, suspend temporarily or revoke permanently our authority to provide air transportation or that of our licensed personnel, after providing notice and a hearing, for failure to comply with FAA regulations. The FAA can assess civil penalties for such failures or institute proceedings for the imposition and collection of monetary fines for the violation of certain FAA regulations. The FAA can revoke our authority to provide air transportation on an emergency basis, without providing notice and a hearing, where significant safety issues are involved. The FAA monitors our compliance with maintenance, flight operations and safety regulations, maintains onsite representatives and performs frequent spot inspections of our aircraft, employees and records.

 

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The FAA also has the authority to issue airworthiness directives and other mandatory orders relating to, among other things, inspection of aircraft and engines, fire retardant and smoke detection devices, collision and windshear avoidance systems, noise abatement and the mandatory removal and replacement of aircraft parts that have failed or may fail in the future.

The TSA operates under the Department of Homeland Security and is responsible for all civil aviation security, including passenger and baggage screening, cargo security measures, airport security, assessment and distribution of intelligence, and security research and development. The TSA also has law enforcement powers and the authority to issue regulations, including in cases of national emergency, without a notice or comment period.

In December 2009, the DOT issued a rule, which among other things, requires carriers not to permit domestic flights to remain on the tarmac for more than three hours (the “Tarmac Delay regulations”). The rule became effective in April 2010. Violators can be fined up to a maximum of $27,500 per passenger. The new rule also introduces requirements to disclose on-time performance and delay statistics for certain flights. This new rule may have adverse consequences on our business and our results of operations. In October 2011, several airport and navigational system outages combined with a severe winter storm impacted the northeast which resulted in numerous flight diversions, by us and other domestic and international carriers, to Hartford, CT’s Bradley International Airport. Due to weather, field and airport terminal conditions, five of our six diverted flights were held on the tarmac for times which exceeded the DOT’s established tarmac delay limits. As a result, the DOT is formally investigating these incidents and we may be subject to a penalty.

As part of an additional set of so-called passenger protection rules issued by the DOT, as of January 2012, the DOT requires any advertised price for airfare or a tour package including airfare (e.g., a hotel/air vacation package) to be the total price to be paid by the customer, including all government taxes and fees. The new policy applies to all U.S. and foreign air carriers and ticket agents that advertise in the U.S. (including via the internet). Under the new rule, carriers and ticket agents are permitted to include a statement informing customers of the base fare versus government taxes and fees, but such a break-down cannot be more prominent than the advertised total price. Failure to comply could result in fines and penalties by the DOT as well as reputational damage, particularly in light of the substantial media coverage on the new rule and the perception that total price advertising is in the best interest of the customer.

We believe that we are operating in material compliance with DOT, FAA, TSA and applicable international and foreign regulations and hold all necessary operating and airworthiness authorizations and certificates. Should any of these authorizations or certificates be modified, suspended or revoked, our business could be materially adversely affected.

We are also subject to state and local laws and regulations in a number of states in which we operate.

Airport Access.     Since 2008, JFK has been a slot-controlled airport during the majority of the day, from 6:00 a.m. to 10:59 p.m. Due to airspace congestion in the northeast, especially in the New York metropolitan region, and during inclement weather, delays remain among the highest in the nation.

At LaGuardia Airport, where we maintain a small presence, the FAA replaced the High Density Rule with a temporary rule continuing the strict limitations on operations during the hours of 6:00 a.m. to 9:59 p.m. Should new slot auction rules be implemented in whole or in part, our ability to maintain a full schedule at LaGuardia would likely be impacted.

Westchester County Airport in White Plains, NY is also a slot-controlled airport. We have 26 slots available for use and currently operate 13 weekday round trip flights from White Plains, NY to six destinations.

Long Beach (California) Municipal Airport is a slot-controlled airport as a result of a 1995 court settlement. We have 32 slots available for use and currently operate 30 weekday roundtrip flights from Long Beach Municipal Airport to 12 domestic cities.

 

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Environmental.     We are subject to various federal, state and local laws relating to the protection of the environment, including the discharge or disposal of materials and chemicals and the regulation of aircraft noise administered by numerous state and federal agencies.

The Airport Noise and Capacity Act of 1990 recognizes the right of airport operators with special noise problems to implement local noise abatement procedures as long as those procedures do not interfere unreasonably with the interstate and foreign commerce of the national air transportation system. Certain airports, including San Diego and Long Beach, California, have established restrictions to limit noise which can include limits on the number of hourly or daily operations and the time of such operations. These limitations serve to protect the local noise-sensitive communities surrounding the airport. Our scheduled flights at Long Beach and San Diego are in compliance with the noise curfew limits but when we experience irregular operations, on occasion, we may violate these curfews. We have agreed to a payment structure with the Long Beach City Prosecutor for any violations which we pay quarterly to the Long Beach Public Library Foundation and is based on the number of infractions in the preceding quarter. This local ordinance has not had, and we believe it will not have, a negative effect on our operations.

Foreign Operations .     International air transportation is subject to extensive government regulation. The availability of international routes to U.S. carriers is regulated by treaties and related agreements between the United States and foreign governments. We currently operate international service to The Bahamas, the Dominican Republic, Bermuda, Aruba, the Netherlands Antilles, Mexico, Colombia, Costa Rica, Jamaica, Barbados, Saint Lucia, the Turks and Caicos Islands and the U.S. Virgin Islands. To the extent we seek to provide air transportation to additional international markets in the future, we would be required to obtain necessary authority from the DOT and the applicable foreign government.

Foreign Ownership.     Under federal law and the DOT regulations, we must be controlled by United States citizens. In this regard, our president and at least two-thirds of our board of directors must be United States citizens and not more than 24.99% of our outstanding common stock may be voted by non-U.S. citizens. We believe we are currently in compliance with these ownership provisions.

Other Regulations.     All air carriers are also subject to certain provisions of the Communications Act of 1934 because of their extensive use of radio and other communication facilities, and are required to obtain an aeronautical radio license from the FCC. To the extent we are subject to FCC requirements, we will take all necessary steps to comply with those requirements. Our labor relations are covered under Title II of the Railway Labor Act of 1926 and are subject to the jurisdiction of the National Mediation Board. In addition, during periods of fuel scarcity, access to aircraft fuel may be subject to federal allocation regulations. We are also subject to state and local laws and regulations at locations where we operate and the regulations of various local authorities that operate the airports we serve.

Civil Reserve Air Fleet.     We are a participant in the Civil Reserve Air Fleet Program, which permits the United States Department of Defense to utilize our aircraft during national emergencies when the need for military airlift exceeds the capability of military aircraft. By participating in this program, we are eligible to bid on and be awarded peacetime airlift contracts with the military.

Insurance

We carry insurance of types customary in the airline industry and at amounts deemed adequate to protect us and our property and to comply both with federal regulations and certain of our credit and lease agreements. As a result of the terrorist attacks of September 11, 2001 (the Terrorist Attacks), aviation insurers significantly reduced the amount of insurance coverage available to commercial air carriers for liability to persons other than employees or passengers for claims resulting from acts of terrorism, war or similar events (war-risk coverage). At the same time, these insurers significantly increased the premiums for aviation insurance in general. The U.S. government has agreed to provide commercial war-risk insurance for U.S. based airlines, currently through

 

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September 30, 2012, covering losses to employees, passengers, third parties and aircraft. We currently have such coverage as part of our overall hull and liability insurance coverage. If the U.S. government were to cease providing such insurance in whole or in part, it is likely that we could obtain comparable coverage in the commercial market, but we would likely incur substantially higher premiums and more restrictive terms.

ITEM 1A.    RISK FACTORS

Risks Related to JetBlue

We operate in an extremely competitive industry.

The domestic airline industry is characterized by low profit margins, high fixed costs and significant price competition. We currently compete with other airlines on all of our routes. Many of our competitors are larger and have greater financial resources and name recognition than we do. Following our entry into new markets or expansion of existing markets, some of our competitors have chosen to add service or engage in extensive price competition. Unanticipated shortfalls in expected revenues as a result of price competition or in the number of passengers carried would negatively impact our financial results and harm our business. The extremely competitive nature of the airline industry could prevent us from attaining the level of passenger traffic or maintaining the level of fares required to maintain profitable operations in new and existing markets and could impede our profitable growth strategy, which would harm our business. Additionally, if a traditional network airline were to fully develop a low cost structure, or if we were to experience increased competition from low cost carriers, our business could be materially adversely affected.

Our business is highly dependent on the availability of fuel and subject to price volatility.

Our results of operations are heavily impacted by the price and availability of fuel. Fuel costs comprise a substantial portion of our total operating expenses and are our single largest operating expense. Historically, fuel costs have been subject to wide price fluctuations based on geopolitical factors and supply and demand. The availability of fuel is not only dependent on crude oil but also on refining capacity. When even a small amount of the domestic or global oil refining capacity becomes unavailable, supply shortages can result for extended periods of time. The availability of fuel is also affected by demand for home heating oil, gasoline and other petroleum products, as well as crude oil reserves, dependence on foreign imports of crude oil and potential hostilities in oil producing areas of the world. Because of the effects of these factors on the price and availability of fuel, the cost and future availability of fuel cannot be predicted with any degree of certainty.

Our aircraft fuel purchase agreements do not protect us against price increases or guarantee the availability of fuel. Additionally, some of our competitors may have more leverage than we do in obtaining fuel. We have and may continue to enter into a variety of option contracts and swap agreements for crude oil, heating oil, and jet fuel to partially protect against significant increases in fuel prices; however, such contracts and agreements do not completely protect us against price volatility, are limited in volume and duration, and can be less effective during volatile market conditions and may carry counterparty risk. Under the fuel hedge contracts we may enter from time to time, counterparties to those contracts may require us to fund the margin associated with any loss position on the contracts if the price of crude oils falls below specified benchmarks. Meeting our obligations to fund these margin calls could adversely affect our liquidity.

Due to the competitive nature of the domestic airline industry, at times we have not been able to adequately increase our fares to offset the increases in fuel prices nor may we be able to do so in the future. Future fuel price increases, continued high fuel price volatility or fuel supply shortages may result in a curtailment of scheduled services and could have a material adverse effect on our financial condition and results of operations.

 

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We have a significant amount of fixed obligations and we will incur significantly more fixed obligations, which could harm our ability to service our current or future fixed obligations.

As of December 31, 2011, our debt of $3.14 billion accounted for 64% of our total capitalization. In addition to long-term debt, we have a significant amount of other fixed obligations under leases related to our aircraft, airport terminal space, other airport facilities and office space. As of December 31, 2011, future minimum payments under noncancelable leases and other financing obligations were approximately $1.03 billion for 2012 through 2016 and an aggregate of $1.44 billion for the years thereafter. We have also constructed, and in October 2008 began operating, a new terminal at JFK under a 30-year lease with the Port Authority of New York and New Jersey, or PANYNJ. The minimum payments under this lease are being accounted for as a financing obligation and have been included in the future minimum payment totals above.

As of December 31, 2011, we had commitments of approximately $5.96 billion to purchase 126 additional aircraft and other flight equipment through 2021, including estimated amounts for contractual price escalations. We will incur additional debt and other fixed obligations as we take delivery of new aircraft and other equipment and continue to expand into new markets. In an effort to limit the incurrence of significant additional debt, we may seek to defer some of our scheduled deliveries, sell or lease aircraft to others, or pay cash for new aircraft, to the extent necessary or possible. The amount of our existing debt, and other fixed obligations, and potential increases in the amount of our debt and other fixed obligations could have important consequences to investors and could require a substantial portion of cash flows from operations for debt service payments, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes.

Our high level of debt and other fixed obligations could:

 

   

impact our ability to obtain additional financing to support capital expansion plans and for working capital and other purposes on acceptable terms or at all;

 

   

divert substantial cash flow from our operations and expansion plans in order to service our fixed obligations;

 

   

require us to incur significantly more interest expense than we currently do if rates were to increase, since a large portion of our debt has floating interest rates; and

 

   

place us at a possible competitive disadvantage compared to less leveraged competitors and competitors that have better access to capital resources or more favorable terms.

Our ability to make scheduled payments on our debt and other fixed obligations will depend on our future operating performance and cash flows, which in turn will depend on prevailing economic and political conditions and financial, competitive, regulatory, business and other factors, many of which are beyond our control. We are principally dependent upon our operating cash flows and access to the capital markets to fund our operations and to make scheduled payments on debt and other fixed obligations. We cannot assure you that we will be able to generate sufficient cash flows from our operations or from capital market activities to pay our debt and other fixed obligations as they become due; if we fail to do so our business could be harmed. If we are unable to make payments on our debt and other fixed obligations, we could be forced to renegotiate those obligations or seek to obtain additional equity or other forms of additional financing.

Our substantial indebtedness may limit our ability to incur additional debt to obtain future financing needs.

We typically finance our aircraft through either secured debt or lease financing. The impact on financial institutions from the global credit and liquidity crisis may adversely affect the availability and cost of credit to JetBlue as well as to prospective purchasers of our aircraft that we undertake to sell in the future, including financing commitments that we have already obtained for purchases of new aircraft. To the extent we finance our activities with additional debt, we may become subject to financial and other covenants that may restrict our ability to pursue our strategy or otherwise constrain our operations.

 

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Our maintenance costs will increase as our fleet ages.

Because the average age of our aircraft is 6.1 years, our aircraft require less maintenance now than they will in the future. We have incurred lower maintenance expenses because most of the parts on our aircraft are under multi-year warranties. Our maintenance costs will increase significantly, both on an absolute basis and as a percentage of our operating expenses, as our fleet ages and these warranties expire.

If we fail to successfully implement our strategy, our business could be harmed.

We have grown, and expect to continue to grow our business whenever practicable, by modifying the frequency of flights to markets we currently serve, expanding the number of markets we serve and increasing flight connection opportunities. We have modified our rate of growth several times over the past few years due to higher fuel prices, the competitive pricing environment and other cost increases, by deferring some of our scheduled deliveries of new aircraft, selling some used aircraft, terminating our leases for some of our aircraft, and leasing aircraft to other operators. A continuation of the economic downturn may cause us to further reduce our future growth plans from previously announced levels.

To the extent we continue to grow our business, opening new markets requires us to commit a substantial amount of resources even before the new services commence. Expansion is also dependent upon our ability to maintain a safe and secure operation and requires additional personnel, equipment and facilities. An inability to hire and retain personnel, timely secure the required equipment and facilities in a cost-effective manner, efficiently operate our expanded facilities, or obtain the necessary regulatory approvals may adversely affect our ability to achieve our growth strategy, which could harm our business. In addition, our competitors often add service, reduce their fares and/or offer special promotions following our entry into a new market. We cannot assure you that we will be able to profitably expand our existing markets or establish new markets or be able to adequately temper our growth in a cost effective manner through additional deferrals or selling or leasing aircraft; if we fail to do so, our business could be harmed.

There are risks associated with our presence in some of our international emerging markets, including political or economic instability and failure to adequately comply with existing legal requirements.

Expansion to new international emerging markets may have risks due to factors specific to those markets. Emerging markets are countries which have less developed economies that are vulnerable to economic and political problems, such as significant fluctuations in gross domestic product, interest and currency exchange rates, civil disturbances, government instability, nationalization and expropriation of private assets and the imposition of taxes or other charges by governments. The occurrence of any of these events in markets served by us and the resulting instability may adversely affect our business.

We have recently expanded our service to countries in the Caribbean and Latin America, some of which have less developed legal systems, financial markets, and business and political environments than the United States, and therefore present greater political, legal, economic and operational risks. We emphasize legal compliance and have implemented policies, procedures and certain ongoing training of employees with regard to business ethics and many key legal requirements; however, there can be no assurance that our employees will adhere to our code of business ethics, other Company policies, or other legal requirements. If we fail to enforce our policies and procedures properly or maintain adequate record-keeping and internal accounting practices to accurately record our transactions, we may be subject to sanctions. In the event that we believe or have reason to believe that employees have or may have violated applicable laws or regulations, we may be subject to investigation costs, potential penalties and other related costs which in turn could negatively affect our results of operations and cash flow.

 

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We may be subject to risks through the commitments and business of LiveTV, our wholly-owned subsidiary.

LiveTV has agreements to provide in-flight entertainment products and services with six other airlines. At December 31, 2011, LiveTV services were available on 413 aircraft under these agreements, with firm commitments for 110 additional aircraft through 2014 and with options for 31 additional installations through 2013. Performance under these agreements requires that LiveTV hire, train and retain qualified employees, obtain component parts unique to its systems and services from their suppliers and secure facilities necessary to perform installations and maintenance on those systems. Should LiveTV be unable to satisfy its commitments under these third party contracts, our business could be harmed.

We may be subject to unionization, work stoppages, slowdowns or increased labor costs; recent changes to the labor laws may make unionization easier to achieve.

Our business is labor intensive and, unlike most other airlines, we have a non-union workforce. The unionization of any of our employees could result in demands that may increase our operating expenses and adversely affect our financial condition and results of operations. Any of the different crafts or classes of our employees could unionize at any time, which would require us to negotiate in good faith with the employee group’s certified representative concerning a collective bargaining agreement. In 2010, the National Mediation Board, or NMB, changed its election procedures to permit a majority of those voting to elect to unionize (from a majority of those in the craft or class). These rule changes fundamentally alter the manner in which labor groups have been able to organize in our industry since the inception of the Railway Labor Act. Ultimately, if we and a newly elected representative were unable to reach agreement on the terms of a collective bargaining agreement and all of the dispute resolution processes of the Railway Labor Act were exhausted, we could be subject to work stoppages. In addition, we may be subject to other disruptions by organized labor groups protesting our non-union status. Any of these events would be disruptive to our operations and could harm our business.

Our aircraft utilization rate to keep our costs low, which makes us especially vulnerable to delays may be reduced by delays and cancellations in our operating regions which could reduce profitability.

We maintain a high daily aircraft utilization rate (the amount of time that our aircraft spend in the air carrying passengers). High daily aircraft utilization allows us to generate more revenue from our aircraft and is achieved in part by reducing turnaround times at airports so we can fly more hours on average in a day. Aircraft utilization is reduced by delays and cancellations from various factors, many of which are beyond our control, including adverse weather conditions, security requirements, air traffic congestion and unscheduled maintenance. The majority of our operations are concentrated in the Northeast and Florida, which are particularly vulnerable to weather and congestion delays. Reduced aircraft utilization may limit our ability to achieve and maintain profitability as well as lead to customer dissatisfaction.

Our business is highly dependent on the New York metropolitan market and increases in competition or congestion or a reduction in demand for air travel in this market, or governmental reduction of our operating capacity at JFK, would harm our business.

We are highly dependent on the New York metropolitan market where we maintain a large presence with approximately one-half of our daily flights having JFK, LaGuardia, Newark, Westchester County Airport or Newburgh’s Stewart International Airport as either their origin or destination. We have experienced an increase in flight delays and cancellations at JFK due to airport congestion which has adversely affected our operating performance and results of operations. Our business could be further harmed by an increase in the amount of direct competition we face in the New York metropolitan market or by continued or increased congestion, delays or cancellations. Our business would also be harmed by any circumstances causing a reduction in demand for air transportation in the New York metropolitan area, such as adverse changes in local economic conditions, negative public perception of New York City, terrorist attacks or significant price increases linked to increases in airport access costs and fees imposed on passengers.

 

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We rely heavily on automated systems to operate our business; any failure of these systems could harm our business.

We are dependent on automated systems and technology to operate our business, enhance customer service and achieve low operating costs. The performance and reliability of our automated systems and data center is critical to our ability to operate our business and compete effectively. These systems include our computerized airline reservation system, flight operations system, telecommunications systems, website, maintenance systems, check-in kiosks, in-flight entertainment systems and our primary and redundant data centers. Our website and reservation system must be able to accommodate a high volume of traffic and deliver important flight information. These systems require upgrades or replacement periodically, which involve implementation and other operational risks. Our business may be harmed if we fail to operate, replace or upgrade our systems or data center infrastructure successfully.

We rely on the third party providers of our current automated systems and data center infrastructure for technical support. If the current provider were to fail to adequately provide technical support for any one of our key existing systems or if new or updated components were not integrated smoothly, we could experience service disruptions, which, if they were to occur, could result in the loss of important data, increase our expenses, decrease our revenues and generally harm our business and reputation. Furthermore, our automated systems cannot be completely protected against events that are beyond our control, including natural disasters, computer viruses, other security breaches, or telecommunications failures. Substantial or sustained system failures could impact customer service and result in our customers purchasing tickets from other airlines. We have implemented security measures and change control procedures and have disaster recovery plans; however, we cannot assure you that these measures are adequate to prevent disruptions, which, if they were to occur, could result in the loss of important data, increase our expenses, decrease our revenues and generally harm our business and reputation.

Our reputation and business may be harmed and we may be subject to legal claims if there is loss, disclosure or misappropriation of or access to our customers’, employees’, business partners’ or our own information or other breaches of our information security.

We make extensive use of online services and centralized data processing, including through third party service providers. The secure maintenance and transmission of customer and employee information is a critical element of our operations. Our information technology and other systems that maintain and transmit customer information, or those of service providers or business partners, may be compromised by a malicious third party penetration of our network security, or that of a third party service provider or business partner, or impacted by deliberate or inadvertent actions or inactions by our employees, or those of a third party service provider or business partner. As a result, personal information may be lost, disclosed, accessed or taken without consent.

Any such loss, disclosure or misappropriation of, or access to, customers’, employees’ or business partners’ information or other breach of our information security can result in legal claims or legal proceedings, including regulatory investigations and actions, may have a serious impact on our reputation and may materially adversely affect our business, operating results and financial condition. Furthermore, the loss, disclosure or misappropriation of our business information may materially adversely affect our business, operating results and financial condition.

Our liquidity could be adversely impacted in the event one or more of our credit card processors were to impose material reserve requirements for payments due to us from credit card transactions.

We currently have agreements with organizations that process credit card transactions arising from purchases of air travel tickets by our customers. Credit card processors have financial risk associated with tickets purchased for travel which can occur several weeks after the purchase. Our credit card processing agreements provide for reserves to be deposited with the processor in certain circumstances. We do not currently have reserves posted for our credit card processors. If circumstances were to occur that would require us to deposit reserves, the negative impact on our liquidity could be significant which could materially adversely affect our business.

 

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If we are unable to attract and retain qualified personnel or fail to maintain our company culture, our business could be harmed.

We compete against the other major U.S. airlines for pilots, mechanics and other skilled labor; some of them offer wage and benefit packages that exceed ours. We may be required to increase wages and/or benefits in order to attract and retain qualified personnel or risk considerable employee turnover. If we are unable to hire, train and retain qualified employees, our business could be harmed and we may be unable to implement our growth plans.

In addition, as we hire more people and grow, we believe it may be increasingly challenging to continue to hire people who will maintain our company culture. One of our competitive strengths is our service-oriented company culture that emphasizes friendly, helpful, team-oriented and customer-focused employees. Our company culture is important to providing high quality customer service and having a productive workforce that helps keep our costs low. As we continue to grow, we may be unable to identify, hire or retain enough people who meet the above criteria, including those in management or other key positions. Our company culture could otherwise be adversely affected by our growing operations and geographic diversity. If we fail to maintain the strength of our company culture, our competitive ability and our business may be harmed.

Our results of operations fluctuate due to seasonality and other factors.

We expect our quarterly operating results to fluctuate due to seasonality including high vacation and leisure demand occurring on the Florida routes between October and April and on our western routes during the summer. Actions of our competitors may also contribute to fluctuations in our results. We are more susceptible to adverse weather conditions, including snow storms and hurricanes, as a result of our operations being concentrated on the East Coast, than some of our competitors. As we enter new markets we could be subject to additional seasonal variations along with any competitive responses to our entry by other airlines. Price changes in aircraft fuel as well as the timing and amount of maintenance and advertising expenditures also impact our operations. As a result of these factors, quarter-to-quarter comparisons of our operating results may not be a good indicator of our future performance. In addition, it is possible that in any future period our operating results could be below the expectations of investors and any published reports or analyses regarding JetBlue. In that event, the price of our common stock could decline, perhaps substantially.

We are subject to the risks of having a limited number of suppliers for our aircraft, engines and a key component of our in-flight entertainment system.

Our current dependence on two types of aircraft and engines for all of our flights makes us vulnerable to significant problems associated with the Airbus A320 aircraft or the IAE International Aero Engines V2527-A5 engine and the EMBRAER 190 aircraft or the General Electric Engines CF-34-10 engine, including design defects, mechanical problems, contractual performance by the manufacturers, or adverse perception by the public that would result in customer avoidance or in actions by the FAA resulting in an inability to operate our aircraft. Carriers that operate a more diversified fleet are better positioned than we are to manage such events.

One of the unique features of our fleet is that every seat in each of our aircraft is equipped with free in-flight entertainment including DirecTV ® . An integral component of the system is the antenna, which is supplied to us by KVH Industries Inc, or KVH. If KVH were to stop supplying us with its antennas for any reason, we would have to incur significant costs to procure an alternate supplier.

Our reputation and financial results could be harmed in the event of an accident or incident involving our aircraft.

An accident or incident involving one of our aircraft, or an aircraft containing LiveTV equipment, could involve significant potential claims of injured passengers or others in addition to repair or replacement of a damaged aircraft and its consequential temporary or permanent loss from service. We are required by the DOT to

 

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carry liability insurance. Although we believe we currently maintain liability insurance in amounts and of the type generally consistent with industry practice, the amount of such coverage may not be adequate and we may be forced to bear substantial losses from an accident. Substantial claims resulting from an accident in excess of our related insurance coverage would harm our business and financial results. Moreover, any aircraft accident or incident, even if fully insured, could cause a public perception that we are less safe or reliable than other airlines which would harm our business.

An ownership change could limit our ability to utilize our net operation loss carryforwards.

As of December 31, 2011, we had approximately $495 million of estimated federal net operating loss carryforwards for U.S. income tax purposes that begin to expire in 2024. Section 382 of the Internal Revenue Code imposes limitation on a corporation’s ability to use its net operating loss carryforwards if it experiences an “ownership change”. Similar rules and limitations may apply for state income tax purposes. In the event an “ownership change” were to occur in the future, our ability to utilize our net operating losses could be limited.

Our business depends on our strong reputation and the value of the JetBlue brand.

The JetBlue brand name symbolizes high-quality friendly customer service, innovation, fun, and a pleasant travel experience. JetBlue is a widely recognized and respected global brand; the JetBlue brand is one of our most important and valuable assets. The JetBlue brand name and our corporate reputation are powerful sales and marketing tools and we devote significant resources to promoting and protecting them. Adverse publicity (whether or not justified) relating to activities by our employees, contractors or agents could tarnish our reputation and reduce the value of our brand. Damage to our reputation and loss of brand equity could reduce demand for our services and thus have an adverse effect on our financial condition, liquidity and results of operations, as well as require additional resources to rebuild our reputation and restore the value of our brand.

We may be subject to competitive risks due to the long term nature of our fleet order book.

At present, we have existing aircraft commitments through 2021. As technological evolution occurs in our industry, through the use of composites and other innovations, we may be competitively disadvantaged because we have existing extensive fleet commitments that would prohibit us from adopting new technologies on an expedited basis.

Risks Associated with the Airline Industry

The airline industry is particularly sensitive to changes in economic condition.

Fundamental and permanent changes in the domestic airline industry have been ongoing over the past several years as a result of several years of repeated losses, among other reasons. These losses resulted in airlines renegotiating or attempting to renegotiate labor contracts, reconfiguring flight schedules, furloughing or terminating employees, as well as considering other efficiency and cost-cutting measures. Despite these actions, several airlines have reorganized under Chapter 11 of the U.S. Bankruptcy Code to permit them to reduce labor rates, restructure debt, terminate pension plans and generally reduce their cost structure. Since 2005, the U.S. airline industry has experienced significant consolidation and liquidations. The global economic recession and related unfavorable general economic conditions, such as higher unemployment rates, a constrained credit market, housing-related pressures, and increased business operating costs can reduce spending for both leisure and business travel. Unfavorable economic conditions could also impact an airline’s ability to raise fares to counteract increased fuel, labor, and other costs. It is foreseeable that further airline reorganizations, consolidation, bankruptcies or liquidations may occur in the current global recessionary environment, the effects of which we are unable to predict. We cannot assure you that the occurrence of these events, or potential changes resulting from these events, will not harm our business or the industry.

 

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A future act of terrorism, the threat of such acts or escalation of U.S. military involvement overseas could adversely affect our industry.

Acts of terrorism, the threat of such acts or escalation of U.S. military involvement overseas could have an adverse effect on the airline industry. In the event of a terrorist attack, whether or not successful, the industry would likely experience increased security requirements and significantly reduced demand. We cannot assure you that these actions, or consequences resulting from these actions, will not harm our business or the industry.

Changes in government regulations imposing additional requirements and restrictions on our operations or the U.S. Government ceasing to provide adequate war risk insurance could increase our operating costs and result in service delays and disruptions.

Airlines are subject to extensive regulatory and legal requirements, both domestically and internationally, that involve significant compliance costs. In the last several years, Congress has passed laws, and the DOT, FAA and the TSA have issued regulations relating to the operation of airlines that have required significant expenditures. We expect to continue to incur expenses in connection with complying with government regulations. Additional laws, regulations, taxes and airport rates and charges have been proposed from time to time that could significantly increase the cost of airline operations or reduce the demand for air travel. If adopted or materially amended, these measures could have the effect of raising ticket prices, reducing air travel demand and/or revenue and increasing costs. The FAA has published new regulations relating to crew rest requirements, which we are currently analyzing. Should the final rules require us to make significant changes to our crew rest requirements, our cost structure could be adversely affected. We cannot assure you that these and other laws or regulations enacted in the future will not harm our business.

The U.S. Government currently provides insurance coverage for certain claims resulting from acts of terrorism, war or similar events. Should this coverage no longer be offered, the coverage that would be available to us through commercial aviation insurers may have substantially less desirable terms, result in higher costs and not be adequate to protect our risk, any of which could harm our business.

Compliance with future environmental regulations may harm our business.

Many aspects of airlines’ operations are subject to increasingly stringent environmental regulations, and growing concerns about climate change may result in the imposition of additional regulation. There is growing consensus that some form of federal regulation will be forthcoming with respect to greenhouse gas emissions (including carbon dioxide (CO2)) and/or “cap and trade” legislation, compliance with which could result in the creation of substantial additional costs to us. The U.S. Congress is considering climate change legislation and the Environmental Protection Agency issued a rule which regulates larger emitters of greenhouse gases. Since the domestic airline industry is increasingly price sensitive, we may not be able to recover the cost of compliance with new or more stringent environmental laws and regulations from our passengers, which could adversely affect our business. Although it is not expected that the costs of complying with current environmental regulations will have a material adverse effect on our financial position, results of operations or cash flows, no assurance can be made that the costs of complying with environmental regulations in the future will not have such an effect. The impact to us and our industry from such actions is likely to be adverse and could be significant, particularly if regulators were to conclude that emissions from commercial aircraft cause significant harm to the upper atmosphere or have a greater impact on climate change than other industries.

Compliance with recently adopted DOT passenger protections rules may increase our costs and may ultimately negatively impact our operations.

The DOT’s passenger protection rules, which became effective in April 2010, provide, among other things, that airlines return aircraft to the gate for deplaning following tarmac delays in certain circumstances. On October 29, 2011, a severe winter storm and multiple failures of critical navigational equipment in the New York

 

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City area, severely impacted air travel in the northeast which resulted in several flight diversions by JetBlue and many other domestic and international carriers to Hartford, CT’s Bradley International Airport, or Bradley. JetBlue diverted a total of six flights to Bradley, five of which were held on the tarmac in excess of three hours, thus exceeding the DOT’s established tarmac delay limits. As a result, the DOT is investigating these incidents and we may be subject to a monetary penalty. Based on the allowable maximum DOT fine proscribed by the Tarmac Delay regulations, we could be assessed a fine of up to approximately $15 million. We have issued compensation to the impacted customers in accordance with our Customer Bill of Rights, and are complying with the requests of the DOT investigation and believe the final determination from the DOT should be made in the next few months.

We could be adversely affected by an outbreak of a disease or an environmental disaster that significantly affects travel behavior.

In 2009, there was an outbreak of the H1N1 virus which had an adverse impact throughout our network, including on our operations to and from Mexico. Any outbreak of a disease (including a worsening of the outbreak of the H1N1 virus) that affects travel behavior could have a material adverse impact on us. In addition, outbreaks of disease could result in quarantines of our personnel or an inability to access facilities or our aircraft, which could adversely affect our operations. Similarly, if an environmental disaster were to occur and adversely impact any of our destination cities, travel behavior could be affected and in turn, could materially adversely impact our business.

The unknown impact from the Dodd-Frank Act as well as the rules to be promulgated under it could require the implementation of additional policies and require us to incur administrative compliance costs.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, contains a variety of provisions designed to regulate financial markets. Further, many aspects of the Dodd-Frank Act are subject to rulemaking that will take effect over several years, thus making it difficult to assess its impact on us at this time. We expect to successfully implement any new applicable legislative and regulatory requirements and may incur additional costs associated with our compliance with the new regulations and anticipated additional reporting and disclosure obligations; however, at this time we do not expect such costs to be material to us.

ITEM 1B.    UNRESOLVED STAFF COMMENTS

None.

 

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ITEM 2.    PROPERTIES

Aircraft

As of December 31, 2011, we operated a fleet consisting of 120 Airbus A320 aircraft each powered by two IAE International Aero Engines V2527-A5 engines and 49 EMBRAER 190 aircraft each powered by two General Electric Engines CF-34-10 engines:

 

Aircraft

   Seating
Capacity
     Owned      Capital
Leased
     Operating
Leased
     Total      Average Age
in Years
 

Airbus A320

     150         86         4         30         120         6.9   

EMBRAER 190

     100         19                 30         49         4.1   
     

 

 

    

 

 

    

 

 

    

 

 

    

Totals

        105         4         60         169         6.1   
     

 

 

    

 

 

    

 

 

    

 

 

    

Our aircraft leases have an average remaining lease term of approximately 9.6 years at December 31, 2011. The earliest of these terms ends in 2013 and the latest ends in 2026. We have the option to extend most of these leases for additional periods or to purchase the aircraft at the end of the related lease term. All but one of our 105 owned aircraft and all but 10 of our 39 owned spare engines are subject to secured debt financing. We also own two EMBRAER 190 aircraft, which are subject to secured debt financing, and are currently being leased to another air carrier and are not included in the table above.

In October 2011, we executed a new purchase agreement with Airbus S.A.S., which supersedes our original purchase agreement and related amendments, and incorporates the terms of the memorandum of understanding executed in June 2011. In this new agreement, we substituted 30 of our then remaining A320 aircraft deliveries with A321 aircraft and placed a new order for 40 A320 new engine option, or A320neo, aircraft with delivery scheduled in 2018 through 2021.

In February 2011, we cancelled the orders for two EMBRAER 190 aircraft previously scheduled for delivery in 2013. In October 2011, we further amended our EMBRAER 190 purchase agreement, terminating 11 aircraft previously scheduled for delivery in 2017 and 2018. In October 2011, we deferred seven aircraft previously scheduled for delivery in 2013 and 2014 to 2018 and cancelled the order for one EMBRAER 190 aircraft previously scheduled for delivery in 2014. Some or all of these deferred aircraft may either be returned to their previously committed to delivery dates or cancelled and subject to cancellation fees if before July 31, 2012 we elect not to further amend our purchase agreement to order a new EMBRAER 190 variant, if developed.

As of December 31, 2011, we had on order 126 aircraft, which are scheduled for delivery through 2021, with options to acquire an additional 56 aircraft. Our aircraft delivery schedule is:

 

     Firm      Option  

Year

   Airbus
A320
     Airbus
A321
     Airbus
A320 neo
     EMBRAER
190
     Total      EMBRAER
190
 

2012

     7                         4         11           

2013

     3         4                 2         9         6   

2014

             9                 2         11         10   

2015

             10                 7         17         10   

2016

     3         7                 8         18         10   

2017

     8                         5         13         10   

2018

                     10         7         17         10   

2019

                     10                 10           

2020

                     10                 10           

2021

                     10                 10           
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
     21         30         40         35         126         56   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

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Facilities

We occupy all of our facilities at each of the airports we serve under leases or other occupancy agreements. Our agreements for terminal passenger service facilities, which include ticket counter and gate space, operations support area and baggage service offices, generally have terms ranging from less than one year to five years, and contain provisions for periodic adjustments of rental rates, landing fees and other charges applicable under the type of lease. We also are responsible for maintenance, insurance, utilities and certain other facility-related expenses and services. We have entered into use arrangements at each of the airports we serve that provide for the non-exclusive use of runways, taxiways and other airport facilities. Landing fees under these agreements are typically based on the number of landings and the weight of the aircraft.

Our primary focus cities include New York’s JFK, Boston, Long Beach, Orlando, Fort Lauderdale and San Juan, Puerto Rico.

In November 2005, we executed a lease agreement with the PANYNJ for the construction and operation of Terminal 5 which became our principal base of operations at JFK when we began to operate from it in October 2008. The lease term ends on October 22, 2038, the thirtieth anniversary of the date of our beneficial occupancy of this terminal, and we have a one-time early termination option five years prior to the end of the scheduled lease term. In December 2010, we executed a supplement to this lease agreement for the Terminal 6 property adjacent to our operations at Terminal 5 for a term of five years, which provides certain use and development rights.

Our operations at Boston’s Logan International Airport, or Logan, are based at Terminal C where we operate 17 gates and 42 ticket counter positions, including 10 international ticket counters. In 2011, Massport completed work that connected two concourses within Terminal C, centralizing the security checkpoint and providing our customers the convenience of 14 contiguous gates.

Our West Coast operations are based at Long Beach Municipal Airport, or Long Beach, which serves the Los Angeles area. We operate four gates at Long Beach. In 2010, the Long Beach Airport began work on redevelopment efforts, including a new parking structure and new terminal, which is expected to open in 2013.

In Florida, our primary operations are at Orlando International Airport, or Orlando, and Fort Lauderdale-Hollywood International Airport, or Fort Lauderdale. We operate from Terminal A in Orlando with eight domestic and one international gate. In Fort Lauderdale, we operate from Terminal 3 with seven domestic gates.

Our operations in San Juan, Puerto Rico are based at Luis Muñoz Marin International Airport, or San Juan, where we operate from Terminal C with preferential use of six gates and access to three additional gates.

We lease a 70,000 square foot aircraft maintenance hangar and an adjacent 32,000 square foot office and warehouse facility at JFK to accommodate our technical support operations and passenger provisioning personnel. The ground lease for this site expires in 2030. In addition, we occupy a building at JFK where we store aircraft spare parts and perform ground equipment maintenance.

We also lease a training center at Orlando International Airport which is equipped with seven full flight simulators, two cabin trainers, a training pool, classrooms and support areas. This facility is being used for the initial and recurrent training of our pilots and in-flight crew, as well as support training for our technical operations and airport crew. In addition, we lease a 70,000 square foot hangar at Orlando International Airport which is used by Live TV for the installation and maintenance of in-flight satellite television systems and aircraft maintenance. The ground leases for our Orlando support facilities expire in 2035.

As of December 31, 2011, our primary corporate offices were located in Forest Hills, New York, where we occupy space under a lease that expires in 2012; our finance department was based in Darien, Connecticut, where we occupy space under a lease that also expires in 2012. We have executed a 12 year lease for our new corporate

 

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offices in Long Island City, New York, which we plan to take occupancy of in March 2012. Our office in Salt Lake City, Utah, where we occupy space under a lease that expires in 2014, contains a core team of employees who are responsible for group sales, customer service, at-home reservation agent supervision, disbursements and certain other finance functions.

At most other locations, our passenger and baggage handling space is leased directly from the airport authority on varying terms dependent on prevailing practice at each airport. We also maintain administrative offices, terminal, and other airport facilities, training facilities, maintenance facilities, and other facilities, in each case as necessary to support our operations in the cities we serve.

ITEM 3.    LEGAL PROCEEDINGS

In the ordinary course of our business, we are party to various legal proceedings and claims which we believe are incidental to the operation of our business. We believe that the ultimate outcome of these proceedings to which we are currently a party will not have a material adverse effect on our business, financial position, results of operations or cash flows.

ITEM 4.    MINE SAFETY DISCLOSURES

Not applicable

 

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EXECUTIVE OFFICERS OF THE REGISTRANT

Certain information concerning JetBlue’s executive officers as of the date of this report follows. There are no family relationships between any of our executive officers.

David Barger , age 54, is our President and Chief Executive Officer. He has served in this capacity since May 2007 and as President since June 2009. He is also a member of our Board of Directors. He previously served as our President from August 1998 to September 2007 and Chief Operating Officer from August 1998 to March 2007. From 1992 to 1998, Mr. Barger served in various management positions with Continental Airlines, including Vice President, Newark hub. He held various director level positions at Continental Airlines from 1988 to 1995. From 1982 to 1988, Mr. Barger served in various positions with New York Air, including Director of Stations.

Mark D. Powers , age 58, is our interim Chief Financial Officer, a position he has held since October 2011. Mr. Powers joined us in July 2006 as Treasurer and Vice President, Corporate Finance. He was promoted to Senior Vice President, Treasurer in 2007 and continues to serve in that capacity.

Rob Maruster , age 40, is our Executive Vice President and Chief Operating Officer and has served in this capacity since June 2009. Mr. Maruster joined JetBlue in 2005 as Vice President, Operations Planning, after a 12-year career with Delta Air Lines in a variety of leadership positions with increasing responsibilities in the carrier’s Marketing and Customer Service departments, culminating in being responsible for all operations at Delta’s largest hub as Vice President, Airport Customer Service at Hartsfield-Jackson Atlanta International Airport. In 2006, Mr. Maruster was promoted to Senior Vice President, Airports and Operational Planning and in 2008, Mr. Maruster’s responsibilities expanded to include the Customer Services group which included Airports, Inflight Services, Reservations, and System Operations.

Robin Hayes , age 45, is our Executive Vice President and Chief Commercial Officer. He joined JetBlue in August 2008 after nineteen years at British Airways. In his last role at British Airways, Mr. Hayes served as Executive Vice President for The Americas and before that he served in a number of operational and commercial positions in the UK and Germany.

James Hnat , age 41, is our Executive Vice President Corporate Affairs, General Counsel and Secretary and has served in this capacity since April 2007. He served as our Senior Vice President, General Counsel and Assistant Secretary since March 2006 and as our General Counsel and Assistant Secretary from February 2003 to March 2006. Mr. Hnat is a member of the bar of New York and Massachusetts.

Don Daniels, age 44, is our Vice President and Chief Accounting Officer, a position he has held since May 2009. He served as our Vice President and Corporate Controller since October 2007. He previously served as our Assistant Controller since July 2006 and Director of Financial Reporting since October 2002.

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY; RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Our common stock is traded on the NASDAQ Global Select Market under the symbol JBLU. The table below shows the high and low sales prices for our common stock.

 

     High      Low  

2010 Quarter Ended

     

March 31

   $ 6.03       $ 4.64   

June 30

     6.95         5.14   

September 30

     6.75         5.21   

December 31

     7.60         6.31   

2011 Quarter Ended

     

March 31

   $ 7.13       $ 5.44   

June 30

     6.38         5.35   

September 30

     6.26         3.86   

December 31

     5.65         3.40   

As of January 31, 2012, there were approximately 691 holders of record of our common stock.

We have not paid cash dividends on our common stock and have no current intention of doing so. Any future determination to pay cash dividends will be at the discretion of our Board of Directors, subject to applicable limitations under Delaware law, and will be dependent upon our results of operations, financial condition and other factors deemed relevant by our Board of Directors.

 

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Stock Performance Graph

This performance graph shall not be deemed “filed” with the SEC or subject to Section 18 of the Exchange Act, nor shall it be deemed incorporated by reference in any of our filings under the Securities Act of 1933, as amended.

The following line graph compares the cumulative total stockholder return on our common stock with the cumulative total return of the Standard & Poor’s 500 Stock Index and the NYSE Arca Airline Index from December 31, 2006 to December 31, 2011. The comparison assumes the investment of $100 in our common stock and in each of the foregoing indices and reinvestment of all dividends. The stock performance shown represents historical performance and is not representative of future stock performance.

 

LOGO

 

     12/31/06      12/31/07      12/31/08      12/31/09      12/31/10      12/31/11  

JetBlue Airways Corporation

   $ 100       $ 42       $ 50       $ 38       $ 47       $ 37   

S&P 500 Stock Index

     100         105         66         84         97         99   

NYSE Arca Airline Index (1)

     100         58         41         56         78         53   

(1) As of December 31, 2011, the NYSE Arca Airline Index consisted of Alaska Air Group Inc., AMR Corporation, Copa Holdings S.A., Delta Air Lines, Inc., Gol Linhas Aereas Inteligentes S.A., Hawaiian Holdings, JetBlue Airways Corporation, US Airways Group, Inc., Lan Airlines S.A., Southwest Airlines Company, Republic Airways Holding, Inc., Ryanair Holdings Ads., SkyWest, Inc, Tam S.A., and United Continental Holdings Inc.

 

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ITEM 6.    SELECTED FINANCIAL DATA

The following financial information for the five years ended December 31, 2011 has been derived from our consolidated financial statements. This information should be read in conjunction with the consolidated financial statements and related notes thereto included elsewhere in this report.

 

     Year Ended December 31,  
     2011     2010     2009     2008     2007  
     (in millions, except per share data)  

Statements of Operations Data:

          

Operating revenues

   $ 4,504      $ 3,779      $ 3,292      $ 3,392      $ 2,843   

Operating expenses:

          

Aircraft fuel and related taxes

     1,664        1,115        945        1,397        968   

Salaries, wages and benefits (1)

     947        891        776        694        648   

Landing fees and other rents

     245        228        213        199        180   

Depreciation and amortization (2)

     233        220        228        205        176   

Aircraft rent

     135        126        126        129        124   

Sales and marketing

     199        179        151        151        121   

Maintenance materials and repairs

     227        172        149        127        106   

Other operating expenses (3)

     532        515        419        377        350   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     4,182        3,446        3,007        3,279        2,673   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     322        333        285        113        170   

Other income (expense) (4)

     (177     (172     (181     (202     (139
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     145        161        104        (89     31   

Income tax expense (benefit)

     59        64        43        (5     19   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 86      $ 97      $ 61      $ (84   $ 12   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Earnings (loss) per common share:

          

Basic

   $ 0.31      $ 0.36      $ 0.24      $ (0.37   $ 0.07   

Diluted

   $ 0.28      $ 0.31      $ 0.21      $ (0.37   $ 0.06   

Other Financial Data:

          

Operating margin

     7.1     8.8     8.6     3.3     6.0

Pre-tax margin

     3.2     4.3     3.2     (2.6 )%      1.1

Ratio of earnings to fixed charges (5)

     1.52     1.59     1.33              

Net cash provided by (used in) operating activities

   $ 614      $ 523      $ 486      $ (17   $ 358   

Net cash used in investing activities

     (502     (696     (457     (247     (734

Net cash provided by (used in) financing activities

     96        (258     306        635        556   

 

(1) In 2010, we incurred approximately $9 million in one-time implementation expenses related to our new customer service system.

 

(2) In 2008, we wrote-off $8 million related to our temporary terminal facility at JFK.

 

(3) In 2009, 2008, and 2007, we sold two, nine, and three aircraft, respectively, which resulted in gains of $1 million, $23 million, and $7 million, respectively. In 2010, we recorded an impairment loss of $6 million related to the spectrum license held by our LiveTV subsidiary. In 2010, we also incurred approximately $13 million in one-time implementation expenses related to our new customer service system.

 

(4) In 2011, we recorded $6 million loss related to the repurchase of $39 million principal amount of our 6.75% convertible debentures due 2039. In 2008, we recorded $13 million in additional interest expense related to the early conversion of a portion of our 5.5% convertible debentures due 2038 and a $14 million gain on extinguishment of debt. In December 2008, we recorded a holding loss of $53 million related to the valuation of our auction rate securities.

 

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(5) Earnings were inadequate to cover fixed charges by $135 million and $11 million for the years ended December 31, 2008 and 2007, respectively.

 

     As of December 31,  
     2011     2010     2009     2008     2007  
     (in millions)  

Balance Sheet Data:

          

Cash and cash equivalents

   $ 673      $ 465      $ 896      $ 561      $ 190   

Investment securities

     591        628        246        244        611   

Total assets

     7,071        6,593        6,549        6,018        5,592   

Total debt

     3,136        3,033        3,304        3,144        3,022   

Common stockholders’ equity

     1,757        1,654        1,546        1,270        1,050   
     Year Ended December 31,  
     2011     2010     2009     2008     2007  

Operating Statistics (unaudited):

          

Revenue passengers (thousands)

     26,370        24,254        22,450        21,920        21,387   

Revenue passenger miles (millions)

     30,698        28,279        25,955        26,071        25,737   

Available seat miles (ASMs)(millions)

     37,232        34,744        32,558        32,442        31,904   

Load factor

     82.4     81.4     79.7     80.4     80.7

Aircraft utilization (hours per day)

     11.7        11.6        11.5        12.1        12.8   

Average fare

   $ 154.74      $ 140.69      $ 130.67      $ 139.56      $ 123.28   

Yield per passenger mile (cents)

     13.29        12.07        11.30        11.73        10.24   

Passenger revenue per ASM (cents)

     10.96        9.82        9.01        9.43        8.26   

Operating revenue per ASM (cents)

     12.10        10.88        10.11        10.45        8.91   

Operating expense per ASM (cents)

     11.23        9.92        9.24        10.11        8.38   

Operating expense per ASM, excluding fuel (cents)

     6.76        6.71        6.33        5.80        5.34   

Airline operating expense per ASM (cents) (6)

     11.06        9.71        8.99        9.87        8.27   

Departures

     243,446        225,501        215,526        205,389        196,594   

Average stage length (miles)

     1,091        1,100        1,076        1,120        1,129   

Average number of operating aircraft during period

     164.9        153.5        148.0        139.5        127.8   

Average fuel cost per gallon, including fuel taxes

   $ 3.17      $ 2.29      $ 2.08      $ 3.08      $ 2.18   

Fuel gallons consumed (millions)

     525        486        455        453        444   

Full-time equivalent employees at period end (6)

     11,733        11,121        10,704        9,895        9,909   

 

(6) Excludes results of operations and employees of LiveTV, LLC, which are unrelated to our airline operations and are immaterial to our consolidated operating results.

The following terms used in this section and elsewhere in this report have the meanings indicated below:

Revenue passengers ” represents the total number of paying passengers flown on all flight segments.

Revenue passenger miles ” represents the number of miles flown by revenue passengers.

Available seat miles ” represents the number of seats available for passengers multiplied by the number of miles the seats are flown.

Load factor ” represents the percentage of aircraft seating capacity that is actually utilized (revenue passenger miles divided by available seat miles).

 

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Aircraft utilization ” represents the average number of block hours operated per day per aircraft for the total fleet of aircraft.

Average fare ” represents the average one-way fare paid per flight segment by a revenue passenger.

Yield per passenger mile ” represents the average amount one passenger pays to fly one mile.

Passenger revenue per available seat mile ” represents passenger revenue divided by available seat miles.

Operating revenue per available seat mile ” represents operating revenues divided by available seat miles.

Operating expense per available seat mile ” represents operating expenses divided by available seat miles.

Operating expense per available seat mile, excluding fuel ” represents operating expenses, less aircraft fuel, divided by available seat miles.

Average stage length ” represents the average number of miles flown per flight.

Average fuel cost per gallon ” represents total aircraft fuel costs, including fuel taxes and effective portion of fuel hedging, divided by the total number of fuel gallons consumed.

 

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ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Overview

We are an award winning airline with a differentiated product and a unique culture focused on our commitment to customer service. We offer competitive fares primarily on point-to-point routes, operating a young, fuel efficient fleet of 120 Airbus A320 aircraft and 49 EMBRAER 190 aircraft. Our core product offers customers the unique JetBlue Experience, which includes more legroom than any other domestic airline’s main cabin, free in-flight entertainment, pre-assigned seating, unlimited snacks and the airline industry’s only Customer Bill of Rights, which provides for compensation to customers who experience avoidable inconveniences (as well as some unavoidable circumstances) and commits us to perform at high service standards and holds us accountable if we do not. At December 31, 2011, we served 70 destinations in 22 states, Puerto Rico, Mexico, and 12 countries in the Caribbean and Latin America and operated over 700 flights a day.

Our goal is to become “the Americas’ Favorite Airline” — for our employees, whom we refer to as crewmembers, customers and shareholders. We are committed to doing so by focusing on three main attributes, investing in our culture including our people; through our offerings including our fleet, product and network; and through foundations, including our processes and systems.

Over the past year, we made improvements to our offerings. Most notably, we executed on our network strategy, by strategically growing in our key Boston and Caribbean markets. We worked to reduce some of the seasonality in our network associated with our traditional leisure travel base by attracting more business travelers. Our focus on offerings resulted in a strong year of double-digit increases in unit revenue with operating revenues per available seat mile for 2011 increasing 11% over 2010. We strengthened our position as the largest carrier in Boston by adding five new destinations from Boston during 2011. We also invested in airport infrastructure changes in Boston to enhance the customer experience with new systems and additional airport space. We continued our focus on building our relevance to the business customer travelling to and from Logan Airport. In the Caribbean and Latin America region, we continued to increase our presence and reached milestones in 2011, by becoming the largest airline serving both Puerto Rico and the Dominican Republic. In particular, our expansion in San Juan, Puerto Rico included the introduction of intra-island service to many of our Caribbean destinations. We have approximately 25% of our capacity in the Caribbean and Latin America region. We are focused on optimizing our schedule and balancing our network to serve a diversified customer mix of leisure travelers, business travelers and visiting friends and relatives’, or VFR, traffic.

We continually seek to enhance our product and provide our customers with superior service. In June 2011, we re-branded and expanded our popular Even More Legroom offering, now known as Even More Space, which includes extra legroom plus early boarding and early access to overhead bin space. Additionally, we introduced Even More Speed, which offers customers the option to enjoy an expedited security experience in select JetBlue airports. Throughout 2011 and 2012, we expanded the number of cities in which Even More Speed is offered to include over 30 of our airports and we will continue to increase the number of cities this expedited security feature is offered in as we work with airport authorities. In 2011, we executed an agreement with ViaSat Inc. to develop and introduce state of the art in-flight broadband connectivity technology on our aircraft. In the fall of 2011, ViaSat successfully launched the satellite which will eventually support this effort. We continue to develop the in-flight broadband connectivity solution and plan to introduce it on our fleet in 2013.

In 2011, we also expanded our route network. We commenced service to Providenciales, Turks and Caicos Islands in February 2011, Anchorage Alaska and Martha’s Vineyard in May 2011, La Romana, Dominican Republic and Liberia, Costa Rica in November 2011, and St. Croix and St. Thomas in the U.S. Virgin Islands in December 2011. We have announced plans to begin service between Dallas/Fort Worth, Texas and Boston in May 2012. In November 2011, we had the winning bids in an auction to acquire eight take-off and landing slots at each of New York’s LaGuardia Airport and Washington DC’s Ronald Reagan National Airport. We plan to begin our expanded service at each of these airports in 2012.

 

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Another key component in optimizing our route network and managing unit revenues and yield is our continued expansion of our portfolio of strategic commercial partnerships. During 2011, we added seven new partnerships with prestigious international airlines, bringing our total commercial partnerships to 14 airlines as of December 31, 2011. In 2012, we announced two additional partnerships. We believe these agreements provide additional revenue opportunities for us and increased travel benefits and opportunities to our customers by allowing access to diverse international markets and a seamless check-in process. Our current partnerships are structured with gateways, which allow access for international travelers on many of our key domestic and Caribbean routes, including in New York, Boston, Newark, Orlando, Fort Meyers, San Juan, or Washington DC.

Since re-launching our customer loyalty program, TrueBlue, in November 2009, we have seen a 30% increase in membership. The program was re-designed based on customer feedback, and is aimed at making our frequent flyer benefits more robust, rewarding, and flexible. TrueBlue points are earned based on the value paid for a flight as opposed to the length of travel. There are no blackout dates for award flights and points expirations can be extended. Based on extensive customer surveys, we believe this enhanced program is making our product more appealing to the business customer.

We derive our revenue primarily from transporting passengers on our aircraft. Passenger revenue accounted for 91% of our total operating revenues for the year ended December 31, 2011. Revenues generated from international routes, including Puerto Rico, accounted for 26% of our total passenger revenues in 2011. Revenue is recognized either when transportation is provided or after the ticket or customer credit expires. We measure capacity in terms of available seat miles, which represents the number of seats available for passengers multiplied by the number of miles the seats are flown. Yield, or the average amount one passenger pays to fly one mile, is calculated by dividing passenger revenue by revenue passenger miles.

We strive to increase passenger revenue primarily by increasing our yield per flight which produces higher revenue per available seat mile, or RASM. Our objective is to optimize our fare mix to increase our overall average fare while continuing to provide our customers with competitive fares. When we enter a new market our fares are designed to stimulate demand, particularly from fare-conscious leisure and business travelers who might otherwise have used alternate forms of transportation or would not have traveled at all. In addition to our regular fare structure, we frequently offer sale fares with shorter advance purchase requirements in most of the markets we serve and match the sale fares offered by other airlines. Passenger revenue also includes revenue from our Even More ancillary product offerings.

The highest levels of traffic and revenue on our routes to and from Florida are generally realized from October through April and on our routes to and from the western United States in the summer. Our VFR markets continue to complement our leisure-driven markets from both a seasonal and day of week perspective. Many of our areas of operations in the Northeast experience bad weather conditions in the winter, causing increased costs associated with de-icing aircraft, cancelled flights and accommodating displaced customers. Many of our Florida and Caribbean routes experience bad weather conditions in the summer and fall due to thunderstorms and hurricanes. As we enter new markets we could be subject to additional seasonal variations along with competitive responses to our entry by other airlines. Given our high proportion of fixed costs, this seasonality may cause our results of operations to vary from quarter to quarter. As such, we are currently focused on trying to reduce the seasonal impact of our operations and increase demand and travel during the trough periods.

Other revenue consists primarily of fees charged to customers in accordance with our published policies relating to reservation changes and baggage limitations, the marketing component of TrueBlue point sales, concession revenues, revenues associated with transporting mail and cargo, rental income and revenues earned by our subsidiary, LiveTV, LLC, for the sale of, and on-going services provided for, in-flight entertainment systems on other airlines.

We operate in an evolving industry, which most recently includes American Airlines entering bankruptcy protection as well as the acquisitions of Continental Airlines by United Airlines and of AirTran Airways by

 

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Southwest Airlines. We believe building and maintaining solid foundations, including preserving our cost advantage and strong liquidity position, profitable growth and making prudent investments, will allow us to continue our commitment to growing organically, even in this uncertain economic environment.

We have built a strong financial foundation, the cornerstones of which are maintaining one of the best liquidity positions and one of the lowest cost structures in the industry. This strong foundation affords us the ability to expand and profitably grow our route network and our customer offerings as well as the flexibility to take advantage of market opportunities as they become available, such as the slot auctions in New York and Washington D.C. during 2011. In 2011, despite rising fuel prices, our ability to attract higher yielding traffic and execution of our sustainable growth strategy has resulted in a third consecutive year of positive free cash flows, which we define as cash flows from operations less capital expenditures.

In 2011, we invested in five new owned EMBRAER 190 aircraft and four new owned Airbus A320 aircraft to our fleet. Even with the addition of these aircraft, all of which were debt financed, our long-term debt balance only grew by a modest $15 million.

In 2011, we made several modifications to our aircraft purchase commitments. In October 2011, we executed a new purchase agreement with Airbus S.A.S., which supersedes our original purchase agreement and related amendments. In this new agreement, we substituted 30 of our remaining A320 aircraft deliveries with A321 aircraft and placed a new order for 40 A320 new engine option, or A320neo, aircraft with delivery scheduled in 2018 through 2021. We also modified our EMBRAER 190 purchase agreement in 2011, canceling two aircraft previously scheduled for delivery in 2013 and one aircraft scheduled for delivery in 2014; deferring seven aircraft previously scheduled for delivery in 2013 and 2014 to 2018; and terminating 11 aircraft previously scheduled for delivery in 2017 and 2018. During the second quarter of 2011, we extended the leases on four Airbus A320 aircraft, which were previously set to expire in 2012. We may further modify our fleet growth through additional aircraft sales, leasing of aircraft, returns of leased aircraft and/or deferral of aircraft deliveries in order to prudently manage our capacity and growth plans. We believe the new mix of our fleet and revised delivery schedules will allow us to better manage our network and continue to improve upon the JetBlue Experience we offer to our valued customers.

We maintain one of the lowest cost structures in the industry relative to the product we offer due to the young average age of our fleet, a productive non-union workforce, and cost discipline. During 2011, while building upon our network strategy, we maintained our focus on cost control and ran an efficient operation, which helped mitigate the impact of rising fuel prices. This was demonstrated in our year over year cost per available seat mile, excluding fuel, which remained relatively flat. We remain focused on managing those costs within our control as we believe this is crucial to maintaining our competitive advantage. In 2012, we plan to continue our focus on cost control while improving the JetBlue Experience for our customers. The largest components of our operating expenses are aircraft fuel and related taxes and salaries, wages and benefits provided to our crewmembers. Unlike most airlines, we make an investment in our culture by having a policy of not furloughing crewmembers during economic downturns, and we have a non-union workforce, which we believe provides us with more flexibility and allows us to be more productive. However, the increasing seniority of our crewmembers and rising healthcare costs are presenting cost pressures. The price and availability of aircraft fuel, which is our single largest operating expense, are extremely volatile due to global economic and geopolitical factors that we can neither control nor accurately predict. Sales and marketing expenses include advertising, fees paid to credit card companies, and commissions paid for our participation in GDSs and OTAs. The majority of our customers book their flights directly through our website, our preferred means of distribution; however distribution costs have increased with our increased participation in GDSs and OTAs since 2010. Maintenance materials and repairs are expensed when incurred unless covered by a third party services contract. Because the average age of our aircraft is 6.1 years, all of our aircraft currently require less maintenance than they will in the future. Our maintenance costs will increase significantly, both on an absolute basis and as a percentage of our unit costs, as our fleet ages. We are continuously exploring opportunities to mitigate the increase in maintenance expense, including new or revised business partner agreements and improving

 

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operational efficiencies. Other operating expenses consist of purchased services (including expenses related to fueling, ground handling, skycap, security and janitorial services), insurance, personnel expenses, cost of goods sold to other airlines by LiveTV, professional fees, passenger refreshments, supplies, bad debts, communication costs, and taxes other than payroll and fuel taxes.

During 2011 fuel prices remained volatile, increasing 38% over average 2010 prices. We actively manage our fuel hedge portfolio by entering into a variety of fuel hedge contracts in order to provide some protection against sharp and sudden volatility and further increases in fuel prices. In total, we hedged 43% of our total 2011 fuel consumption. As of December 31, 2011, we had outstanding fuel hedge contracts covering approximately 42% of our forecasted consumption for the first quarter of 2012 and 27% for the full year 2012. We will continue to monitor fuel prices closely and intend to take advantage of fuel hedging opportunities as they become available.

The airline industry is one of the most heavily taxed in the U.S., with taxes and fees accounting for approximately 15% of the total fare charged to a customer. Airlines are obligated to fund all of these taxes and fees regardless of their ability to pass these charges on to the customer. Additionally, if the TSA were to change the way the Aviation Security Infrastructure Fee is assessed, our security costs could be higher.

We continue to focus on maintaining an adequate liquidity level. Our goal is to continue to be diligent with our liquidity, thereby managing our capital expenditures to accommodate a sustainable growth plan. We have manageable scheduled debt maturities in 2012 totaling approximately $200 million, which we believe will enable us to achieve our liquidity goals. During 2011, we pre-purchased $39 million of our 6.75% Series A convertible debentures due 2039, as we believe this will help better manage future debt maturities and reduce overall interest expense.

Outlook for 2012

In 2012, our focus will continue to be on our culture, offerings, and foundations, which we have outlined as key elements of our value proposition. We anticipate building upon our strong financial foundation during 2012 by controlling costs, to the extent possible, in order to maintain a competitive cost advantage and maximizing unit revenues through our unique product offering and focused network strategy. We aim to deliver improved year over year margins. We continuously look to expand our other ancillary revenue opportunities and enhance the JetBlue Experience for all of our customers, leisure and business travelers alike. We are also focused on managing our future debt maturities and investing in infrastructure and product enhancements that will result in future benefits.

For the full year, we expect our operating capacity to increase approximately 5.5% to 7.5% over 2011 with the net addition of seven Airbus A320 aircraft and four EMBRAER 190 aircraft to our operating fleet. Assuming fuel prices of $3.17 per gallon, including fuel taxes and net of our fuel hedging activity, our cost per available seat mile for 2012 is expected to increase by 1.5% to 3.5% over 2011. This expected increase is a result of higher maintenance costs due to the aging of our fleet and assumed increase in fuel prices. While we expect to face significant cost pressures on maintenance expense in 2012 related to the aging of our fleet, we are working diligently to reduce these cost pressures in the future.

Results of Operations

During 2011, overall economic conditions remained volatile and the competitive nature of the airline industry persisted. We generated consistent unit revenue growth throughout the year by managing our network and balancing the seasonality created by our highly leisure focused business. We did so by complementing our leisure travel markets with higher yielding business markets and capitalizing on key growth regions, primarily Boston and the Caribbean, which has resulted in increased capacity. Average fares for the year increased 10% over 2010 to $155 and yield increased 10% on a capacity increase of 7%.

 

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Our operations are highly concentrated along the eastern coast of the United States, which at times makes us susceptible to the impact of severe weather. During the first quarter of 2011, the winter storm season was extremely severe. The operational impact of the severe storm season pressured our CASM, excluding fuel and negatively impacted our completion factor. During the third quarter of 2011, Hurricane Irene severely impacted our operations as its path travelled directly through the core of our network. Flights were suspended in New York and Boston, resulting in approximately 1400 cancellations over a three day period.

Our on-time performance, defined by the DOT as arrivals within 14 minutes of schedule, was 73.3% in 2011 compared to 75.7% in 2010. Our on-time performance throughout the year and on a year-over-year basis remained challenged by our significant operations in the northeast United States, which represents a very challenging airspace and includes some of the most congested and delay-prone airports in the U.S.

Year 2011 Compared to Year 2010

We reported net income of $86 million in 2011 compared to net income of $97 million in 2010. In 2011, we had operating income of $322 million, a decrease of $11 million over 2010, and an operating margin of 7.1%, down 1.7 points from 2010. Diluted earnings per share were $0.28 for 2011 compared to diluted earnings per share of $0.31 for 2010.

Operating Revenues.     Operating revenues increased 19%, or $725 million, primarily due to a 20% increase in passenger revenues. The $668 million increase in passenger revenues was attributable to a 7% increase in capacity along with a 10% increase in yield. Included in this amount is a $36 million increase in revenue from our Even More Space seats as a result of increased capacity and revised pricing.

Other revenues increased 15%, or $57 million, primarily due to a $17 million increase in marketing related revenues, an $11 million increase in change fees partially as a result of high levels of change fee waivers during the first half of 2010 in conjunction with our new integrated customer service systems implementation, higher excess baggage revenue of $7 million and increased rates for other ancillary services during 2011. Other revenue also increased $14 million due to higher LiveTV third party revenues.

Operating Expenses.     Operating expenses increased 21%, or $736 million, primarily due to higher fuel prices, an increase in maintenance expense associated with our aging fleet, and an 8% increase in departures over 2010. We had on average 12 additional average aircraft in service in 2011 and operating capacity increased approximately 7% to 37.23 billion available seat miles in 2011. Operating expenses per available seat mile increased 13% to 11.23 cents. Excluding fuel, our cost per available seat mile increased 0.9% in 2011. In detail, operating costs per available seat mile were (percent changes are based on unrounded numbers):

 

         Year Ended December 31,          Percent
Change
 
     2011      2010     
     (in cents)         

Operating expenses:

        

Aircraft fuel and related taxes

     4.47         3.21         39.2

Salaries, wages and benefits

     2.54         2.57         (0.9

Landing fees and other rents

     .66         .65         0.7   

Depreciation and amortization

     .63         .63         (0.8

Aircraft rent

     .36         .36         0.0   

Sales and marketing

     .53         .52         3.5   

Maintenance materials and repairs

     .61         .50         23.3   

Other operating expenses

     1.43         1.48         (3.5
  

 

 

    

 

 

    

Total operating expenses

     11.23         9.92         13.3
  

 

 

    

 

 

    

 

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Aircraft fuel expense increased 49%, or $549 million, due to a 38% increase in average fuel cost per gallon, or $461 million after the impact of fuel hedging and 39 million more gallons of aircraft fuel consumed, resulting in $88 million of higher fuel expense. We recorded $3 million in effective fuel hedge gains, which were an offset to fuel expense, during 2011 versus $3 million in effective fuel hedge losses, which were an addition to fuel expense, during 2010. Our average fuel cost per gallon was $3.17 for the year ended December 31, 2011 compared to $2.29 for the year ended December 31, 2010. Our fuel costs represented 40% and 32% of our operating expenses in 2011 and 2010, respectively. Based on our expected fuel volume for 2012, a 10% per gallon increase in the cost of aircraft fuel would increase our annual fuel expense by approximately $175 million. Cost per available seat mile increased 39% primarily due to the increase in fuel prices.

Salaries, wages and benefits increased 6%, or $56 million, primarily due to a 5% increase in the average number of full-time equivalent employees needed to support our profitable growth plans as well as certain increases in wages and related benefits as a result of pay increases and the increasing seniority levels of our crewmembers. Cost per available seat mile decreased 1% primarily due to the increased capacity and improved employee efficiencies.

Landing fees and other rents increased 8%, or $17 million, primarily due to an 8% increase in departures over 2010, which includes the effects of expanded operations in certain markets and the opening of seven new cities in 2011 as well as an increase in average landing fee and airport rental rates.

Depreciation and amortization increased 6%, or $13 million. The increase in depreciation expense was primarily a result of having an average of 105 owned and capital leased aircraft in 2011 compared to 97 in 2010. The increased depreciation was slightly offset by a reduction in owned computer hardware.

Aircraft rent increased 7%, or $9 million, due to our leasing of six used aircraft during the second half of 2010, slightly offset by extending the leases on four aircraft during 2011 at lower rates.

Sales and marketing expense increased 11%, or $20 million, due to $14 million in higher credit card fees resulting from increased average fares, $3 million in higher commissions in 2011 related to our increased participation in GDSs and OTAs and $2 million in higher advertising costs. Cost per available seat mile increased 3% due to costs associated with increased fares.

Maintenance materials and repairs increased 32%, or $55 million, due to 12 additional average operating aircraft in 2011 compared to 2010, the gradual aging of our fleet, and aircraft coming off of warranty. As of December 31, 2011, our oldest operating aircraft had an age of 12.1 years and the average age of our fleet increased to 6.1 years compared to 5.4 years as of December 31, 2010. Maintenance expense is expected to increase significantly as our fleet ages, resulting in the need for additional, more expensive repairs over time. Cost per available seat mile increased 23% primarily due to the gradual aging of our fleet.

Other operating expenses increased 3%, or $17 million, due to an increase in variable costs associated with 8% more departures versus 2010, operating out of seven additional cities in 2011 in addition to the full year of operations at the three cities opened throughout 2010. In 2010, we incurred approximately $13 million in one-time implementation expenses related to our new customer service system and a $6 million one-time impairment expense related to the intangible assets and other costs associated with developing an air to ground connectivity capability. In 2010, we also paid a $5 million rescheduling fee in connection with the deferral of aircraft. Cost per available seat mile decreased 4% due primarily to the 2010 implementation costs associated with our new customer service system and the one-time impairment expense in 2010.

Other Income (Expense).     Interest expense remained relatively unchanged from 2010. Decreases due to the extinguishments of higher yielding debt resulted in approximately $2 million less interest expense. These decreases in interest expense were offset by additional financing including 13 new aircraft during 2010 and 2011, resulting in $9 million of additional interest expense. Capitalized interest increased due to higher average outstanding pre-delivery deposits on near term delivery aircraft.

 

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Interest income and other decreased $7 million primarily due to $6 million in losses on the early extinguishment of $39 million par value of our 6.75% Series A convertible debt due 2039. Accounting ineffectiveness on crude, heating oil and jet fuel derivatives classified as cash flow hedges resulted in losses of $2 million in each of 2011 and in 2010. We are unable to predict what the amount of ineffectiveness will be related to these instruments, or the potential loss of hedge accounting which is determined on a derivative-by-derivative basis, due to the volatility in the forward markets for these commodities.

Our effective tax rate was 41% in 2011 compared to 40% in 2010. Our effective tax rate differs from the statutory income tax rate primarily due to state income taxes, the change in valuation allowance and the non-deductibility of certain items for tax purposes and the relative size of these items to our pre-tax income of $145 million in 2011 and pre-tax income of $161 million in 2010. The rate increase was due to a reduction in the valuation allowance attributable to state net operating loss carryforwards in 2010.

Year 2010 Compared to Year 2009

We reported net income of $97 million in 2010 compared to net income of $61 million in 2009. In 2010, we had operating income of $333 million, an increase of $48 million over 2009, and an operating margin of 8.8%, up 0.2 points from 2009. Diluted earnings per share were $0.31 for 2010 compared to diluted earnings per share of $0.21 for 2009.

Operating Revenues.     Operating revenues increased 15%, or $487 million, primarily due to a 16% increase in passenger revenues. The $478 million increase in passenger revenues was attributable to a 7% increase in capacity with a 7% increase in yield and a 1.7 point increase in load factor over 2009, amounts which include capacity reductions during the initial cutover period to our new customer service system in the first quarter of 2010. Included in this amount is a $14 million increase in Even More Legroom revenue as a result of increased capacity and revised pricing.

Other revenues increased 3%, or $9 million, primarily due to a $10 million increase in marketing related revenues, higher excess baggage revenue of $4 million and increased rates for certain ancillary services during 2010. Other revenue also increased $3 million due to higher inflight food and beverage sales, but was offset by a $10 million reduction in change fees and reservation fees as a result of high levels of change fee waivers during the first half of 2010 in conjunction with our new system migration.

Operating Expenses.     Operating expenses increased 15%, or $439 million, primarily due to higher fuel prices and an increase in other operating expenses, including the one-time implementation related expenses of our new customer service system, overall higher technology infrastructure costs, and a one-time impairment charge. Additionally, operating expenses increased due to higher salaries, wages and benefits related to pilot pay increases implemented in mid-2009, increased sales and marketing expenses due to higher fares and increased GDS participation, and increased maintenance and variable costs. We had on average five additional average aircraft in service in 2010 and operating capacity increased approximately 7% to 34.74 billion available seat miles in 2010. Operating expenses per available seat mile increased 7% to 9.92 cents. Excluding fuel, our cost

 

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per available seat mile increased 6% in 2010. In detail, operating costs per available seat mile were (percent changes are based on unrounded numbers):

 

         Year Ended December 31,          Percent
Change
 
     2010      2009     
     (in cents)         

Operating expenses:

        

Aircraft fuel and related taxes

     3.21         2.91         10.6

Salaries, wages and benefits

     2.57         2.38         7.6   

Landing fees and other rents

     .65         .65         (0.1

Depreciation and amortization

     .63         .70         (9.8

Aircraft rent

     .36         .39         (6.0

Sales and marketing

     .52         .46         11.5   

Maintenance materials and repairs

     .50         .46         8.2   

Other operating expenses

     1.48         1.29         15.1   
  

 

 

    

 

 

    

Total operating expenses

     9.92         9.24         7.4
  

 

 

    

 

 

    

As part of our IT investments during 2010, we have had a shift in costs from depreciation expense to other operating expenses. Additionally, the severe winter weather during 2010, both in February and December, created unexpected cost pressures.

Aircraft fuel expense increased 18%, or $170 million, due to a 10% increase in average fuel cost per gallon, or $104 million after the impact of fuel hedging and 31 million more gallons of aircraft fuel consumed, resulting in $66 million of higher fuel expense. We recorded $3 million in effective fuel hedge losses during 2010 versus $120 million during 2009. Our average fuel cost per gallon was $2.29 for the year ended December 31, 2010 compared to $2.08 for the year ended December 31, 2009. Our fuel costs represented 32% and 31% of our operating expenses in 2010 and 2009, respectively. Based on our expected fuel volume for 2011, a 10% per gallon increase in the cost of aircraft fuel would increase our annual fuel expense by approximately $130 million. Cost per available seat mile increased 11% primarily due to the increase in fuel prices.

Salaries, wages and benefits increased 15%, or $115 million, due to an increase in average full-time equivalent employees, increased wages and related benefits for several of our large workgroups implemented between June 2009 and throughout 2010. We also had higher salaries, wages and benefits as a result of premium time related to the severe winter storms in the Northeast both in early and late 2010. The increase in average full-time equivalent employees is partially driven by additional staffing levels in preparation for our new customer service system implementation in January 2010, which resulted in an additional $9 million of expense, as well as our policy of not furloughing employees. Cost per available seat mile increased 8% primarily due to an increase in full-time equivalent employees.

Landing fees and other rents increased 7%, or $15 million, due to a 5% increase in departures over 2009, which includes the effects of expanded operations in certain markets and the opening of three new cities in 2010 as well as an increase in average landing fee and airport rental rates. Cost per available seat mile remained relatively unchanged.

Depreciation and amortization decreased 4%, or $8 million. Purchased technology related to our LiveTV acquisition became fully amortized in late 2009, resulting in reduced amortization expense in 2010. The reduced amortization expense was offset by an increase in depreciation expense as we had an average of 97 owned and capital leased aircraft in 2010 compared to 93 in 2009. Additionally, we had increased software amortization in 2010 related to our new customer service system. Cost per available seat mile decreased 10% due to purchased technology becoming fully amortized and less owned computer hardware resulting from changes to our IT infrastructure.

 

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Sales and marketing expense increased 19%, or $28 million, due to $14 million in higher credit card fees resulting from increased average fares, $12 million in higher commissions in 2010 related to our increased participation in GDSs and OTAs and $2 million in higher advertising costs. Cost per available seat mile increased 12% due to increased fares and shift in distribution channels as a result of our increased capabilities from our new customer service system.

Maintenance materials and repairs increased 15%, or $23 million, due to five additional average operating aircraft in 2010 compared to 2009 and the gradual aging of our fleet. The average age of our fleet increased to 5.4 years as of December 31, 2010 compared to 4.3 years as of December 31, 2009. Maintenance expense is expected to increase significantly as our fleet ages, resulting in the need for more exhaustive routine maintenance checks. Cost per available seat mile increased 8% primarily due to the gradual aging of our fleet.

Other operating expenses increased 23%, or $96 million, due to an increase in variable costs associated with 5% more departures versus 2009, operating out of three additional cities in 2010 in addition to the full year of operations at the eight cities opened throughout 2009, and a severe winter storm season in early 2010. We also incurred approximately $13 million in one-time implementation expenses related to our new customer service system, as well as overall higher technology infrastructure related costs. Additionally, we incurred a $6 million one-time impairment expense related to the intangible assets and other costs associated with developing an air to ground connectivity capability by LiveTV. In 2010, we also paid a $5 million rescheduling fee in connection with the deferral of aircraft. In 2009, other operating expenses were offset by $11 million for certain tax incentives and $1 million in gains on sales of aircraft. Cost per available seat mile increased 15% due primarily to the implementation costs associated with our new customer service system, changes in our IT infrastructure and the 2009 tax incentive credits.

Other Income (Expense).     Interest expense decreased 9%, or $18 million, primarily due to lower debt balances and changes in interest rates, totaling approximately $14 million, and retirements of debt which resulted in approximately $14 million less interest expense. These decreases in interest expense were offset by additional financing including four new aircraft and the issuance in June 2009 of our 6.75% convertible debentures, resulting in $11 million of additional interest expense. Capitalized interest decreased due to lower average outstanding pre-delivery deposits and lower interest rates.

Interest income and other decreased 62%, or $6 million, primarily due to lower interest rates earned on investments. Interest income and other included $2 million in gains on the extinguishment of debt in 2009. Derivative instruments not qualifying as cash flow hedges in 2010 resulted in an insignificant loss, compared to losses of $1 million in 2009. Accounting ineffectiveness on crude, heating oil and jet fuel derivatives classified as cash flow hedges resulted in losses of $2 million in 2010 and gains of $1 million in 2009. We are unable to predict what the amount of ineffectiveness will be related to these instruments, or the potential loss of hedge accounting which is determined on a derivative-by-derivative basis, due to the volatility in the forward markets for these commodities.

Our effective tax rate was 40% in 2010 compared to 41% in 2009. Our effective tax rate differs from the statutory income tax rate due to the non-deductibility of certain items for tax purposes and the relative size of these items to our pre-tax income of $161 million in 2010 and pre-tax income of $104 million in 2009.

 

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Quarterly Results of Operations

The following table sets forth selected financial data and operating statistics for the four quarters ended December 31, 2011. The information for each of these quarters is unaudited and has been prepared on the same basis as the audited consolidated financial statements appearing elsewhere in this Form 10-K.

 

     Three Months Ended  
     March 31,
2011
    June 30,
2011
    September 30,
2011
    December 31,
2011
 

Statements of Operations Data (dollars in millions)

        

Operating revenues

   $ 1,012      $ 1,151      $ 1,195      $ 1,146   

Operating expenses:

        

Aircraft fuel and related taxes

     353        439        454        418   

Salaries, wages and benefits

     235        235        236        241   

Landing fees and other rents

     57        63        65        60   

Depreciation and amortization

     56        58        57        62   

Aircraft rent

     34        36        32        33   

Sales and marketing

     45        51        49        54   

Maintenance materials and repairs

     52        54        59        62   

Other operating expenses

     135        129        135        133   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     967        1,065        1,087        1,063   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     45        86        108        83   

Other income (expense) (1)

     (39     (43     (52     (43
  

 

 

   

 

 

   

 

 

   

 

 

 

Income before income taxes

     6        43        56        40   

Income tax expense

     3        18        21        17   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 3      $ 25      $ 35      $ 23   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating margin

     4.4     7.5     9.0     7.3

Pre-tax margin

     0.6     3.8     4.6     3.5

Operating Statistics:

        

Revenue passengers (thousands)

     6,039        6,622        7,016        6,693   

Revenue passenger miles (millions)

     6,924        7,692        8,332        7,750   

Available seat miles ASM (millions)

     8,511        9,441        9,855        9,425   

Load factor

     81.4     81.5     84.5     82.2

Aircraft utilization (hours per day)

     11.0        11.9        12.0        11.5   

Average fare

   $ 150.02      $ 158.01        154.88        155.60   

Yield per passenger mile (cents)

     13.08        13.60        13.04        13.44   

Passenger revenue per ASM (cents)

     10.64        11.08        11.03        11.05   

Operating revenue per ASM (cents)

     11.89        12.19        12.12        12.16   

Operating expense per ASM (cents)

     11.37        11.28        11.03        11.27   

Operating expense per ASM, excluding fuel (cents)

     7.22        6.62        6.43        6.85   

Airline operating expense per ASM (cents) (2)

     11.17        11.10        10.88        11.10   

Departures

     56,706        61,632        63,099        62,009   

Average stage length (miles)

     1,075        1,091        1,108        1,090   

Average number of operating aircraft during period

     161.4        164.6        165.8        167.9   

Average fuel cost per gallon, including fuel taxes

   $ 2.94      $ 3.31      $ 3.25      $ 3.15   

Fuel gallons consumed (millions)

     120        133        139        133   

Full-time equivalent employees at period end (2)

     11,281        11,609        11,443        11,733   

 

(1) During the third and fourth quarters of 2011, we recorded $5 million and $1 million in losses, respectively, related to the early extinguishment of a portion of our 6.75% Series A convertible debt due 2039.

 

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(2) Excludes results of operations and employees of LiveTV, LLC, which are unrelated to our airline operations and are immaterial to our consolidated operating results.

Although we experienced significant revenue growth in 2011, this trend may not continue. We expect our expenses to continue to increase significantly as we acquire additional aircraft, as our fleet ages and as we expand the frequency of flights in existing markets and enter into new markets. Accordingly, the comparison of the financial data for the quarterly periods presented may not be meaningful. In addition, we expect our operating results to fluctuate significantly from quarter-to-quarter in the future as a result of various factors, many of which are outside our control. Consequently, we believe that quarter-to-quarter comparisons of our operating results may not necessarily be meaningful and you should not rely on our results for any one quarter as an indication of our future performance.

Liquidity and Capital Resources

Our business is capital intensive. Our ability to successfully implement our strategy is dependent on the continued availability of capital on attractive terms. In addition, our ability to successfully operate our business is dependent on maintaining sufficient liquidity. We believe that we have adequate resources from a combination of cash and cash equivalents on hand and cash expected to be generated from future operations to continue to meet our obligations as they become due.

At December 31, 2011, we had cash and cash equivalents of $673 million and short-term investments of $553 million, as compared to cash and cash equivalents of $465 million and short-term investments of $495 million at December 31, 2010. We also had $38 million of long-term investments at December 31, 2011 compared to $133 million at December 31, 2010. Cash flows provided by operating activities totaled $614 million in 2011 compared to $523 million in 2010 and $486 million in 2009. The $91 million increase in cash flows from operations in 2011 compared to 2010 was primarily as a result of the 10% increase in average fares and 7% increase in capacity, offset by 38% higher price of fuel. The $37 million increase in cash flows from operations in 2010 compared to 2009 was primarily a result of an 8% increase in average fares, 7% increase in capacity and 1.7 point increase in load factor, offset by 10% higher price of fuel in 2010 compared to 2009. As of December 31, 2011, our unrestricted cash, cash equivalents and short-term investments as a percentage of trailing twelve months revenue was approximately 27%, which we believe is among the best in the industry. We rely primarily on cash flows from operations, which we believe have increased significantly due to the execution of our network strategy, to provide working capital for current and future operations.

Investing Activities.     During 2011, capital expenditures related to our purchase of flight equipment included $318 million for four Airbus A320 aircraft five EMBRAER 190 aircraft and nine spare engines, $44 million for flight equipment deposits and $27 million for spare part purchases. Capital expenditures for other property and equipment, including ground equipment purchases, facilities improvements and LiveTV inventory, were $135 million. Investing activities in 2011 also included the net proceeds from the sale and maturities of $24 million in investment securities.

During 2010, capital expenditures related to our purchase of flight equipment included $142 million for four aircraft and five spare engines, $50 million for flight equipment deposits and $14 million for spare part purchases. Capital expenditures for other property and equipment, including ground equipment purchases, facilities improvements and LiveTV inventory, were $93 million. Investing activities in 2010 also included the net purchase of $384 million in investment securities.

Financing Activities.     Financing activities during 2011 consisted primarily of (1) the early extinguishment of $39 million principal of our 6.75% Series A convertible debentures due 2039 for $45 million, (2) scheduled maturities of $188 million of debt and capital lease obligations, (3) the early payment of $3 million on our spare parts pass-through certificates, (4) our issuance of $121 million in fixed rate equipment notes and $124 million in non-public floating rate equipment notes secured by four Airbus A320 aircraft and five EMBRAER 190 aircraft,

 

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(5) the net borrowings of $88 million under our corporate purchasing line for purchase of jet fuel, (6) the repayment of $10 million in principal related to our construction obligation for Terminal 5 and (7) the acquisition of $4 million in treasury shares related to the withholding of taxes, upon the vesting of restricted stock units.

Financing activities during 2010 consisted primarily of (1) the required repurchase of $156 million of our 3.75% convertible debentures due 2035, (2) the net repayment of $56 million on our line of credit collateralized by our auction rate securities, or ARS, (3) scheduled maturities of $177 million of debt and capital lease obligations, (4) our issuance of $47 million in fixed rate equipment notes and $69 million in non-public floating rate equipment notes secured by four EMBRAER 190 aircraft and five spare engines, (5) the reimbursement of construction costs incurred for Terminal 5 of $15 million and (6) the repayment of $5 million in principal related to our construction obligation for Terminal 5.

We may in the future issue, in one or more public offerings, debt securities, pass-through certificates, common stock, preferred stock and/or other securities. At this time, we have no plans to sell any such securities.

None of our lenders or lessors are affiliated with us.

Capital Resources.     We have been able to generate sufficient funds from operations to meet our working capital requirements. Substantially all of our property and equipment is encumbered, excluding one aircraft and 10 spare engines which we own. We have historically financed our aircraft through either secured debt or lease financing. At December 31, 2011, we operated a fleet of 169 aircraft, of which 60 were financed under operating leases, four were financed under capital leases and all but one of the remaining 105 were financed by secured debt. We are working on securing committed financing for the four EMBRAER 190 aircraft scheduled for delivery in 2012. We may purchase some or all of the seven Airbus A320 aircraft scheduled for delivery in 2012 with cash and will only finance these aircraft at favorable borrowing terms relative to our weighted average cost of debt. Although we believe that debt and/or lease financing should be available for our remaining aircraft deliveries, we cannot give assurance that we will be able to secure financing on terms attractive to us, if at all. While these financings may or may not result in an increase in liabilities on our balance sheet, our fixed costs will increase significantly regardless of the financing method ultimately chosen. To the extent we cannot secure financing, we may be required to pay in cash, further modify our aircraft acquisition plans or incur higher than anticipated financing costs.

Working Capital.     We had working capital of $216 million at December 31, 2011, compared to $267 million at December 31, 2010. Our working capital includes the fair value of our short-term fuel hedge derivatives, which was a net liability of $4 million at December 31, 2011 and an asset of $19 million at December 31, 2010.

In September 2011, we executed a corporate purchasing line with American Express, which allows us to borrow up to a maximum of $125 million. Borrowings cannot exceed $30 million per week and may only be used for the purchase of jet fuel. Borrowings on this corporate purchasing line are subject to our compliance with the terms and conditions of the credit agreement, including certain financial covenants which include a requirement to maintain certain cash and short-term investment levels and a minimum earnings before income taxes, interest, depreciation and amortization, or EBITDA, margin, as well as customary events of default. Borrowings, which are to be re-paid monthly, are subject to a 6.9% annual interest rate subject to certain limitations. This borrowing facility will terminate no later than December 31, 2014. Since opening the line in September 2011, our average outstanding daily balance was $50 million. As of December 31, 2011, we had $88 million drawn under this revolving credit facility. As of January 31, 2012, we had $44 million outstanding on the corporate purchasing line, which was paid in full in early February 2012.

We expect to meet our obligations as they become due through available cash, investment securities and internally generated funds, supplemented as necessary by financing activities, as they may be available to us. We expect to continue to generate positive working capital through our operations. However, we cannot predict what

 

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the effect on our business might be from the extremely competitive environment we are operating in or from events that are beyond our control, such as volatile fuel prices, economic conditions, weather-related disruptions, the impact of airline bankruptcies, restructurings or consolidations, U.S. military actions or acts of terrorism. We believe the working capital available to us will be sufficient to meet our cash requirements for at least the next 12 months.

Our scheduled debt maturities are expected to increase over the next five years, with a scheduled peak in 2014 of nearly $600 million. We are actively managing our liquidity to overcome these debt hurdles by pre- purchasing convertible debt and other outstanding debt when market conditions allow. In doing so, we are working to smooth the scheduled debt maturity schedule over the next five years, which will also have the effect of reducing overall interest expense.

Anticipated capital expenditures for facility improvements, spare parts and ground purchases in 2012 are projected to be approximately $215 million.

Contractual Obligations

Our noncancelable contractual obligations at December 31, 2011 include (in millions):

 

     Payments due in  
     Total      2012      2013      2014      2015      2016      Thereafter  

Long-term debt and capital lease obligations (1)

   $ 3,752       $ 324       $ 514       $ 675       $ 347       $ 531       $ 1,361   

Lease commitments

     1,578         205         176         171         172         107         747   

Flight equipment obligations

     5,960         425         450         580         775         785         2,945   

Short-term borrowings

     88         88                                           

Financing obligations and other (2)

     2,997         306         268         223         238         307         1,655   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 14,375       $ 1,348       $ 1,408       $ 1,649       $ 1,532       $ 1,730       $ 6,708   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Includes actual interest and estimated interest for floating-rate debt based on December 31, 2011 rates.

 

(2) Amounts include noncancelable commitments for the purchase of goods and services.

The interest rates are fixed for $1.62 billion of our debt and capital lease obligations, with the remaining $1.43 billion having floating interest rates. The floating interest rates adjust quarterly or semi-annually based on the London Interbank Offered Rate, or LIBOR. The weighted average maturity of all of our debt was seven years at December 31, 2011. We are subject to certain financial ratios for our unsecured line of credit issued in September 2011, including a requirement to maintain certain cash and short-term investment levels and a minimum earnings before income taxes, interest, depreciation and amortization, or EBITDA margin, as well as customary events of default. We are subject to certain collateral ratio requirements in our spare parts pass-through certificates and spare engine financing issued in November 2006 and December 2007, respectively. If we fail to maintain these collateral ratios, we are required to provide additional collateral or redeem some or all of the equipment notes so that the ratios return to compliance. As a result of lower spare parts inventory balances and the associated reduced third party valuation of these parts, we pledged as collateral a previously unencumbered spare engine with a carrying value of approximately $7 million during the second quarter of 2011. During the third quarter of 2011, we did not meet the minimum ratios on our spare parts pass-through certificates due to the reduced third party valuation of these parts. In order to maintain the ratios, we elected to redeem $3 million of the equipment notes to be settled in November 2011. At December 31, 2011, we were in compliance with all covenants of our debt and lease agreements and 75% of our owned property and equipment were pledged as security under various loan agreements.

 

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We have operating lease obligations for 60 aircraft with lease terms that expire between 2013 and 2026. Five of these leases have variable-rate rent payments that adjust semi-annually based on LIBOR. We also lease airport terminal space and other airport facilities in each of our markets, as well as office space and other equipment. We have approximately $33 million of restricted assets pledged under standby letters of credit related to certain of our leases which will expire at the end of the related lease terms.

Our firm aircraft orders at December 31, 2011 consisted of 21 Airbus A320 aircraft, 30 Airbus A321 aircraft, 40 Airbus A320 neo aircraft and 35 EMBRAER 190 aircraft scheduled for delivery as follows: 11 in 2012, 9 in 2013, 11 in 2014, 17 in 2015, 18 in 2016, 13 in 2017, 17 in 2018, 10 in 2019, 10 in 2020 and 10 in 2021. We meet our predelivery deposit requirements for our aircraft by paying cash or by using short-term borrowing facilities for deposits required six to 24 months prior to delivery. Any predelivery deposits paid by the issuance of notes are fully repaid at the time of delivery of the related aircraft. We also have options to acquire 56 additional EMBRAER 190 aircraft for delivery from 2013 through 2018.

Our aircraft orders reflect contract modifications undertaken in 2011, including a new purchase agreement with Airbus S.A.S., which superseded our original purchase agreement and related amendments. In this new agreement, we substituted 30 of our then remaining A320 aircraft deliveries with A321 aircraft and placed a new order for 40 A320neo aircraft with delivery scheduled in 2018 through 2021. We also modified our EMBRAER 190 purchase agreement in February 2011, canceling two aircraft previously scheduled for delivery in 2013. In October 2011, we further amended our EMBRAER 190 purchase agreement, terminating 11 aircraft previously scheduled for delivery in 2017 and 2018, deferring seven aircraft previously scheduled for delivery in 2013 and 2014 to 2018 and cancelling the order for one EMBRAER 190 aircraft previously scheduled for delivery in 2014. Some or all of these deferred aircraft may either be returned to their previously committed to delivery dates or cancelled and subject to cancellation fees if we elect not to further amend our purchase agreement to order a new EMBRAER 190 variant, if developed.

In October 2008, we began operating out of our new Terminal 5 at JFK, or Terminal 5, which we had been constructing since November 2005. The construction and operation of this facility is governed by a lease agreement that we entered into with the PANYNJ in 2005. We are responsible for making various payments under the lease, including ground rents for the terminal site which began on lease execution in 2005 and facility rents that commenced in October 2008 upon our occupancy of the terminal. The facility rents are based on the number of passengers enplaned out of the terminal, subject to annual minimums. The PANYNJ has reimbursed us for costs of this project in accordance with the terms of the lease, except for approximately $78 million in leasehold improvements that have been provided by us. For financial reporting purposes, this project is being accounted for as a financing obligation, with the constructed asset and related liability being reflected on our balance sheets. Minimum ground and facility rents for this terminal totaling $1.17 billion are included in the commitments table above as lease commitments and financing obligations.

Our commitments also include those of LiveTV, which has several noncancelable long-term purchase agreements with its suppliers to provide equipment to be installed on its customers’ aircraft, including JetBlue’s aircraft.

We enter into individual employment agreements with each of our FAA-licensed employees. Each employment agreement is for a term of five years and automatically renews for an additional five-year term unless the employee is terminated for cause or the employee elects not to renew it. Pursuant to these agreements, these employees can only be terminated for cause. In the event of a downturn in our business that would require a reduction in work hours, we are obligated to pay these employees a guaranteed level of income and to continue their benefits. As we are not currently obligated to pay this guaranteed income and benefits, no amounts related to these guarantees are included in the table above.

 

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Off-Balance Sheet Arrangements

None of our operating lease obligations are reflected on our balance sheet. Although some of our aircraft lease arrangements are with variable interest entities, as defined by the Consolidations topic of the Financial Accounting Standards Board’s, or FASB, Accounting Standards Codification TM , or Codification, none of them require consolidation in our financial statements. The decision to finance these aircraft through operating leases rather than through debt was based on an analysis of the cash flows and tax consequences of each option and a consideration of additional liquidity requirements. We are responsible for all maintenance, insurance and other costs associated with operating these aircraft; however, we have not made any residual value or other guarantees to our lessors.

We have determined that we hold a variable interest in, but are not the primary beneficiary of, certain pass-through trusts which are the purchasers of equipment notes issued by us to finance the acquisition of new aircraft and certain aircraft spare parts owned by JetBlue and held by such pass-through trusts. These pass-through trusts maintain liquidity facilities whereby a third party agrees to make payments sufficient to pay up to 18 months of interest on the applicable certificates if a payment default occurs. The liquidity providers for the Series 2004-1 aircraft certificates and the spare parts certificates are Landesbank Hessen-Thüringen Girozentrale and Morgan Stanley Capital Services Inc. The liquidity providers for the Series 2004-2 aircraft certificates are Landesbank Baden-Württemberg and Citibank, N.A.

We use a policy provider to provide credit support on our Class G-1 and Class G-2 floating rate enhanced equipment notes. The policy provider has unconditionally guaranteed the payment of interest on the certificates when due and the payment of principal on the certificates no later than 18 months after the final expected regular distribution date. The policy provider is MBIA Insurance Corporation (a subsidiary of MBIA, Inc.). Financial information for the parent company of the policy provider is available at the SEC’s website at http://www.sec.gov or at the SEC’s public reference room in Washington, D.C.

We have also made certain guarantees and indemnities to other unrelated parties that are not reflected on our balance sheet which we believe will not have a significant impact on our results of operations, financial condition or cash flows. We have no other off-balance sheet arrangements. See Notes 2, 3 and 12 to our consolidated financial statements for a more detailed discussion of our variable interests and other contingencies, including guarantees and indemnities.

Critical Accounting Policies and Estimates

The preparation of our financial statements in conformity with generally accepted accounting principles requires management to adopt accounting policies and make estimates and judgments to develop amounts reported in our financial statements and accompanying notes. We maintain a thorough process to review the application of our accounting policies and to evaluate the appropriateness of the estimates that are required to prepare our financial statements. We believe that our estimates and judgments are reasonable; however, actual results and the timing of recognition of such amounts could differ from those estimates. In addition, estimates routinely require adjustment based on changing circumstances and the receipt of new or better information.

Critical accounting policies and estimates are defined as those that are reflective of significant judgments and uncertainties, and potentially result in materially different results under different assumptions and conditions. The policies and estimates discussed below have been reviewed with our independent registered public accounting firm and with the Audit Committee of our Board of Directors. For a discussion of these and other accounting policies, see Note 1 to our consolidated financial statements.

Passenger revenue.      Passenger ticket sales are initially deferred in air traffic liability. The air traffic liability also includes customer credits issued and unused tickets whose travel date has passed. Credit for unused tickets and customer credits can each be applied towards another ticket within 12 months of the original

 

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scheduled service or 12 months from the issuance of the customer credit. Revenue is recognized when transportation is provided or when a ticket or customer credit expires. We also defer, in air traffic liability, an estimate for customer credits issued in conjunction with the JetBlue Airways Customer Bill of Rights we expect to be ultimately redeemed. These estimates are based on historical experience and are periodically evaluated, and adjusted if necessary, based on actual credit usage.

Frequent flyer accounting.     We utilize a number of estimates in accounting for our TrueBlue customer loyalty program, or TrueBlue. We record a liability, which was $9 and $6 million as of December 31, 2011 and 2010, respectively, for the estimated incremental cost of outstanding points earned from JetBlue purchases that we expect to be redeemed. The estimated cost includes incremental fuel, insurance, passenger food and supplies, and reservation costs. We adjust this liability, which is included in air traffic liability, based on points earned and redeemed, changes in the estimated incremental costs associated with providing travel and changes in the TrueBlue program. In November 2009, we launched an improved version of TrueBlue, which allows customers to earn points based on the value paid for a trip rather than the length of the trip. In addition, unlike our original program, the improved version does not result in the automatic generation of a travel award once minimum award levels are reached, but instead the points are maintained in the account until used by the member or until they expire 12 months after the last account activity. As a result of these changes, breakage, or the points that ultimately expire unused, has been substantially reduced. Periodically, we evaluate our assumptions for appropriateness, including comparison of the cost estimates to actual costs incurred as well as the expiration and redemption assumptions to actual experience. Changes in the minimum award levels or in the lives of the awards would also require us to reevaluate the liability, potentially resulting in a significant impact in the year of change as well as in future years.

Points in TrueBlue can also be sold to participating companies, including credit card and car rental companies. These sales are accounted for as multiple-element arrangements, with one element representing the fair value of the travel that will ultimately be provided when the points are redeemed and the other consisting of marketing related activities that we conduct with the participating company. The fair value of the transportation portion of these point sales is deferred and recognized as passenger revenue when transportation is provided. The marketing portion, which is the excess of the total sales proceeds over the estimated fair value of the transportation to be provided, is recognized in other revenue when the points are sold. Deferred revenue for points sold and not redeemed is recognized as revenue when the underlying points expire. Deferred revenue was $84 and $57 million at December 31, 2011 and 2010, respectively.

The terms of expiration of all points under our original loyalty program were modified with the launch of a new version of TrueBlue in 2009. We recorded $3 million and $13 million in revenue for point expirations in 2011 and 2010, respectively.

Our co-branded credit card agreement, under which we sell TrueBlue points as described above, provided for a minimum cash payment guarantee, which was paid to us throughout the life of the agreement if specified point sales and other ancillary activity payments were not achieved and was subject to refund in the event that cash payments exceeded future minimums through April 2011. We recorded revenue related to this guarantee when the likelihood of us providing any future service was remote. During 2011, we recognized approximately $10 million related to this guarantee, which represented the balance under this guarantee. During 2010, we recognized approximately $5 million related to this guarantee.

Accounting for long-lived assets.     In accounting for long-lived assets, we make estimates about the expected useful lives, projected residual values and the potential for impairment. In estimating useful lives and residual values of our aircraft, we have relied upon actual industry experience with the same or similar aircraft types and our anticipated utilization of the aircraft. Changing market prices of new and used aircraft, government regulations and changes in our maintenance program or operations could result in changes to these estimates.

Our long-lived assets are evaluated for impairment at least annually or when events and circumstances indicate that the assets may be impaired. Indicators include operating or cash flow losses, significant decreases in

 

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market value or changes in technology. As our assets are all relatively new and we continue to have positive operating cash flows, we have not identified any significant impairment related to our long-lived assets at this time.

Lease accounting.     We operate airport facilities, offices buildings and aircraft under operating leases with minimum lease payments associated with these agreements recognized as rent expense on a straight-line basis over the expected lease term. Within the provisions of certain leases there are minimum escalations in payments over the base lease term and periodic adjustments of lease rates, landing fees, and other charges applicable under such agreements, as well as renewal periods. The effects of the escalations and other adjustments have been reflected in rent expense on a straight-line basis over the lease term, which includes renewal periods when it is deemed to be reasonably assured at the inception of the lease that we would incur an economic penalty for not renewing. The amortization period for leasehold improvements is the term used in calculating straight-line rent expense or their estimated economic life, whichever is shorter.

Derivative instruments used for aircraft fuel .    We utilize financial derivative instruments to manage the risk of changing aircraft fuel prices. We do not purchase or hold any derivative instrument for trading purposes. At December 31, 2011, we had a net $4 million liability related to the net fair value of these derivative instruments; the majority of which are not traded on a public exchange. Fair values are assigned based on commodity prices that are provided to us by independent third parties. When possible, we designate these instruments as cash flow hedges for accounting purposes, as defined by the Derivatives and Hedging topic of the Codification which permits the deferral of the effective portions of gains or losses until contract settlement.

The Derivatives and Hedging topic is a complex accounting standard and requires that we develop and maintain a significant amount of documentation related to (1) our fuel hedging program and strategy, (2) statistical analysis supporting a highly correlated relationship between the underlying commodity in the derivative financial instrument and the risk being hedged (i.e. aircraft fuel) on both a historical and prospective basis and (3) cash flow designation for each hedging transaction executed, to be developed concurrently with the hedging transaction. This documentation requires that we estimate forward aircraft fuel prices since there is no reliable forward market for aircraft fuel. These prices are developed through the observation of similar commodity futures prices, such as crude oil and/or heating oil, and adjusted based on variations to those like commodities. Historically, our hedges have settled within 24 months; therefore, the deferred gains and losses have been recognized into earnings over a relatively short period of time.

Fair value measurements.      The Fair Value Measurements and Disclosures topic of the Codification clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The Fair Value Measurements and Disclosures topic also requires disclosure about how fair value is determined for assets and liabilities and establishes a hierarchy for which these assets and liabilities must be grouped, based on significant levels of inputs. We rely on unobservable (level 3) inputs, which are highly subjective, in determining the fair value of certain assets and liabilities, including our interest rate swaps.

We elected to apply the fair value option under the Financial Instruments topic of the Codification to an agreement with one of our ARS’ broker, to repurchase in 2010, ARS brokered by them at par. The fair value of the put was determined by comparing the fair value of the related ARS to their par values and also considered the credit risk associated with the broker. This put option was adjusted on each balance sheet date based on its then fair value. The fair value of the put option was based on unobservable inputs and was therefore classified as level 3 in the hierarchy. This put option was fully exercised in 2010 upon its expiration.

In 2008 and 2009, we entered into various interest rate swaps, which qualify as cash flow hedges in accordance with the Derivatives and Hedging topic. The fair values of our interest rate swaps were initially based on inputs received from the counterparty. These values were corroborated by adjusting the active swap indications in quoted markets for similar terms (6-8 years) for the specific terms within our swap agreements.

 

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There has been no ineffectiveness relating to these interest rate swaps since all critical terms continue to match the underlying debt, with all of the unrealized losses being deferred in accumulated other comprehensive income.

 

ITEM 7A.    QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

The risk inherent in our market risk sensitive instruments and positions is the potential loss arising from adverse changes to the price of fuel and interest rates as discussed below. The sensitivity analyses presented do not consider the effects that such adverse changes may have on the overall economic activity, nor do they consider additional actions we may take to mitigate our exposure to such changes. Variable-rate leases are not considered market sensitive financial instruments and, therefore, are not included in the interest rate sensitivity analysis below. Actual results may differ. See Notes 1, 2 and 13 to our consolidated financial statements for accounting policies and additional information.

Aircraft fuel.     Our results of operations are affected by changes in the price and availability of aircraft fuel. To manage the price risk, we use crude or heating oil option contracts or jet fuel swap agreements. Market risk is estimated as a hypothetical 10% increase in the December 31, 2011 cost per gallon of fuel. Based on projected 2012 fuel consumption, such an increase would result in an increase to aircraft fuel expense of approximately $175 million in 2012, compared to an estimated $130 million for 2011 measured as of December 31, 2010. As of December 31, 2011, we had hedged approximately 27% of our projected 2012 fuel requirements. All hedge contracts existing at December 31, 2011 settle by December 31, 2012. We expect to realize approximately $6 million in losses during 2012 currently in other comprehensive income related to our outstanding fuel hedge contracts.

Interest.     Our earnings are affected by changes in interest rates due to the impact those changes have on interest expense from variable-rate debt instruments and on interest income generated from our cash and investment balances. The interest rate is fixed for $1.62 billion of our debt and capital lease obligations, with the remaining $1.43 billion having floating interest rates. If interest rates average 10% higher in 2012 than they did during 2011, our interest expense would increase by approximately $1 million, compared to an estimated $1 million for 2011 measured as of December 31, 2010. If interest rates average 10% lower in 2012 than they did during 2011, our interest income from cash and investment balances would remain relatively constant, similar to the relative constant level of interest income for 2011 measured as of December 31, 2010. These amounts are determined by considering the impact of the hypothetical interest rates on our variable-rate debt, cash equivalents and investment securities balances at December 31, 2011 and 2010.

Fixed Rate Debt.     On December 31, 2011, our $285 million aggregate principal amount of convertible debt had a total estimated fair value of $378 million, based on quoted market prices. If interest rates were 10% higher than the stated rate, the fair value of this debt would have been $405 million as of December 31, 2011.

 

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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

JETBLUE AIRWAYS CORPORATION

CONSOLIDATED BALANCE SHEETS

(In millions, except share data)

 

     December 31,  
     2011      2010  
ASSETS      

CURRENT ASSETS

     

Cash and cash equivalents

   $ 673       $ 465   

Investment securities

     553         495   

Receivables, less allowance (2011-$8; 2010-$6)

     101         84   

Inventories, less allowance (2011-$4; 2010-$4)

     50         49   

Restricted cash

             3   

Prepaid expenses

     147         148   

Other

     5         27   

Deferred income taxes

     99         89   
  

 

 

    

 

 

 

Total current assets

     1,628         1,360   

PROPERTY AND EQUIPMENT

     

Flight equipment

     4,719         4,320   

Predelivery deposits for flight equipment

     154         178   
  

 

 

    

 

 

 
     4,873         4,498   

Less accumulated depreciation

     827         679   
  

 

 

    

 

 

 
     4,046         3,819   

Other property and equipment

     531         491   

Less accumulated depreciation

     207         178   
  

 

 

    

 

 

 
     324         313   

Assets constructed for others

     561         558   

Less accumulated amortization

     71         49   
  

 

 

    

 

 

 
     490         509   
  

 

 

    

 

 

 

Total property and equipment

     4,860         4,641   

OTHER ASSETS

     

Investment securities

     38         133   

Restricted cash

     67         65   

Other

     478         394   
  

 

 

    

 

 

 

Total other assets

     583         592   
  

 

 

    

 

 

 

TOTAL ASSETS

   $ 7,071       $ 6,593   
  

 

 

    

 

 

 

 

See accompanying notes to consolidated financial statements.

 

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JETBLUE AIRWAYS CORPORATION

CONSOLIDATED BALANCE SHEETS

(In millions, except share data)

 

     December 31,  
     2011     2010  
LIABILITIES AND STOCKHOLDERS’ EQUITY   

CURRENT LIABILITIES

    

Accounts payable

   $ 148      $ 104   

Air traffic liability

     627        514   

Accrued salaries, wages and benefits

     152        147   

Other accrued liabilities

     199        145   

Short-term borrowings

     88          

Current maturities of long-term debt and capital leases

     198        183   
  

 

 

   

 

 

 

Total current liabilities

     1,412        1,093   

LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS

     2,850        2,850   

CONSTRUCTION OBLIGATION

     526        533   

DEFERRED TAXES AND OTHER LIABILITIES

    

Deferred income taxes

     392        327   

Other

     134        136   
  

 

 

   

 

 

 
     526        463   

COMMITMENTS AND CONTINGENCIES

    

STOCKHOLDERS’ EQUITY

    

Preferred stock, $.01 par value; 25,000,000 shares authorized, none issued

              

Common stock, $.01 par value; 900,000,000 shares authorized, 326,589,018 and 322,272,207 shares issued and 281,777,919 and 294,687,308 shares outstanding in 2011 and 2010, respectively

     3        3   

Treasury stock, at cost; 44,811,710 and 27,585,367 shares in 2011 and 2010,
respectively

     (8     (4

Additional paid-in capital

     1,472        1,446   

Retained earnings

     305        219   

Accumulated other comprehensive income (loss), net of taxes

     (15     (10
  

 

 

   

 

 

 

Total stockholders’ equity

     1,757        1,654   
  

 

 

   

 

 

 

TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY

   $ 7,071      $ 6,593   
  

 

 

   

 

 

 

 

See accompanying notes to consolidated financial statements.

 

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JETBLUE AIRWAYS CORPORATION

CONSOLIDATED STATEMENTS OF OPERATIONS

(In millions, except per share amounts)

 

     Year Ended December 31,  
     2011     2010     2009  

OPERATING REVENUES

      

Passenger

   $ 4,080      $ 3,412      $ 2,934   

Other

     424        367        358   
  

 

 

   

 

 

   

 

 

 

Total operating revenues

     4,504        3,779        3,292   

OPERATING EXPENSES

      

Aircraft fuel and related taxes ($49, $39, and $34 in 2011, 2010, and 2009, respectively)

     1,664        1,115        945   

Salaries, wages and benefits

     947        891        776   

Landing fees and other rents

     245        228        213   

Depreciation and amortization

     233        220        228   

Aircraft rent

     135        126        126   

Sales and marketing

     199        179        151   

Maintenance materials and repairs

     227        172        149   

Other operating expenses

     532        515        419   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     4,182        3,446        3,007   
  

 

 

   

 

 

   

 

 

 

OPERATING INCOME

     322        333        285   

OTHER INCOME (EXPENSE)

      

Interest expense

     (179     (180     (198

Capitalized interest

     5        4        7   

Interest income and other

     (3     4        10   
  

 

 

   

 

 

   

 

 

 

Total other income (expense)

     (177     (172     (181
  

 

 

   

 

 

   

 

 

 

INCOME BEFORE INCOME TAXES

     145        161        104   

Income tax expense

     59        64        43   
  

 

 

   

 

 

   

 

 

 

NET INCOME

   $ 86      $ 97      $ 61   
  

 

 

   

 

 

   

 

 

 

EARNINGS PER COMMON SHARE:

      

Basic

   $ 0.31      $ 0.36      $ 0.24   
  

 

 

   

 

 

   

 

 

 

Diluted

   $ 0.28      $ 0.31      $ 0.21   
  

 

 

   

 

 

   

 

 

 

 

See accompanying notes to consolidated financial statements.

 

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JETBLUE AIRWAYS CORPORATION

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In millions)

 

     Year Ended December 31,  
     2011     2010     2009  

CASH FLOWS FROM OPERATING ACTIVITIES

      

Net income

   $ 86      $ 97      $ 61   

Adjustments to reconcile net income to net cash provided by operating activities:

      

Deferred income taxes

     58        62        42   

Depreciation

     213        194        190   

Amortization

     34        36        44   

Stock-based compensation

     13        17        16   

Losses (Gains) on sale of flight equipment and extinguishment of debt

     6               (3

Collateral returned (deposits) for derivative instruments

     10        (13     132   

Restricted cash returned by (paid for) business partners

            5        65   

Changes in certain operating assets and liabilities:

      

Decrease (Increase) in receivables

     (10     (4     3   

Decrease (Increase) in inventories, prepaid and other

     4        (4     (43

Increase in air traffic liability

     113        70        4   

Increase (Decrease) in accounts payable and other accrued liabilities

     26        27        (66

Other, net

     61        36        41   
  

 

 

   

 

 

   

 

 

 

Net cash provided by operating activities

     614        523        486   

CASH FLOWS FROM INVESTING ACTIVITIES

      

Capital expenditures

     (480     (249     (434

Predelivery deposits for flight equipment

     (45     (50     (32

Refund of predelivery deposits for flight equipment

     1               5   

Proceeds from sale of flight equipment

                   58   

Assets constructed for others

     (3     (14     (47

Purchase of held-to-maturity investments

     (450     (866     (22

Proceeds from maturities of held-to-maturity investments

     573        414          

Purchase of available-for-sale securities

     (602     (1,069     (636

Sale of available-for-sale securities

     503        1,052        486   

Sale of auction rate securities

            85        175   

Return of (deposits for) security deposits

     1        1        (10
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (502     (696     (457

CASH FLOWS FROM FINANCING ACTIVITIES

      

Proceeds from:

      

Issuance of common stock

     10        9        120   

Issuance of long-term debt

     245        116        446   

Short-term borrowings

     128               10   

Borrowings collateralized by ARS

            20        3   

Construction obligation

     6        15        49   

Repayment of:

      

Long-term debt and capital lease obligations

     (238     (333     (180

Short-term borrowings

     (40            (20

Borrowings collateralized by ARS

            (76     (110

Construction obligation

     (10     (5       

Other, net

     (5     (4     (12
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     96        (258     306   
  

 

 

   

 

 

   

 

 

 

INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS

     208        (431     335   

Cash and cash equivalents at beginning of period

     465        896        561   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 673      $ 465      $ 896   
  

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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JETBLUE AIRWAYS CORPORATION

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(In millions)

 

    Common
Shares
    Common
Stock
    Treasury
Shares
    Treasury
Stock
    Additional
Paid-In
Capital
    Retained
Earnings
    Accumulated
Other
Comprehensive
Income (Loss)
    Total  

Balance at December 31, 2008

    289      $ 3        17      $        1,290      $ 61      $ (84   $ 1,270   

Net income

                                       61               61   

Changes in comprehensive income (Note 15)

                                              85        85   
               

 

 

 

Total comprehensive income

                  146   

Vesting of restricted stock units

    1                      (2                          (2

Stock compensation expense

                                15                      15   

Stock issued under crewmember stock purchase plan

    1                             7                      7   

Proceeds from secondary offering, net of offering expenses

    26                             109                      109   

Other

    2               10               1                      1   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2009

    319        3        27        (2     1,422        122        1        1,546   

Net income

                                       97               97   

Changes in comprehensive income (Note 15)

                                              (11     (11
               

 

 

 

Total comprehensive income

                  86   

Vesting of restricted stock units

    1               1        (2                          (2

Stock compensation expense

                                15                      15   

Stock issued under crewmember stock purchase plan

    1                             7                      7   

Other

    1                             2                      2   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2010

    322        3        28        (4     1,446        219        (10     1,654   

Net income

                                       86               86   

Changes in comprehensive income (Note 15)

                                              (5     (5
               

 

 

 

Total comprehensive income

                  81   

Vesting of restricted stock units

    2               1        (4                          (4

Stock compensation expense

                                15                      15   

Stock issued under crewmember stock purchase plan

    2                             8                      8   

Shares returned pursuant to 2008 share lending

                  16                                      

Other

    1                             3                      3   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2011

    327      $ 3        45      $ (8   $ 1,472      $ 305      $ (15   $ 1,757   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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JETBLUE AIRWAYS CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2011

JetBlue Airways Corporation is an innovative passenger airline that provides award-winning customer service at competitive fares primarily on point-to-point routes. We offer our customers a high quality product with young, fuel-efficient aircraft, leather seats, free in-flight entertainment at every seat, pre-assigned seating and reliable performance. We commenced service in February 2000 and established our primary base of operations at New York’s John F. Kennedy International Airport, or JFK, where we now have more enplanements than any other airline. As of December 31, 2011, we served 70 destinations in 22 states, Puerto Rico, Mexico, and 12 countries in the Caribbean and Latin America. Our wholly owned subsidiary, LiveTV, LLC, or LiveTV, provides in-flight entertainment systems for commercial aircraft, including live in-seat satellite television, digital satellite radio, wireless aircraft data link service and cabin surveillance systems.

Note 1—Summary of Significant Accounting Policies

Basis of Presentation:     Our consolidated financial statements include the accounts of JetBlue Airways Corporation, or JetBlue, and our subsidiaries, collectively “we” or the “Company”, with all intercompany transactions and balances having been eliminated. Air transportation services accounted for substantially all the Company’s operations in 2011, 2010 and 2009. Accordingly, segment information is not provided for LiveTV. Certain prior year amounts have been reclassified to conform to the current year presentation.

Use of Estimates:     We are required to make estimates and assumptions when preparing our consolidated financial statements in conformity with accounting principles generally accepted in the United States that affect the amounts reported in our consolidated financial statements and accompanying notes. Actual results could differ from those estimates.

Fair Value:     The Fair Value Measurements and Disclosures topic of the Financial Accounting Standards Board’s, or FASB, Accounting Standards Codification TM , or Codification, establishes a framework for measuring fair value and requires enhanced disclosures about fair value measurements. Additionally, this topic clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The Fair Value Measurements and Disclosures topic also requires disclosure about how fair value is determined for assets and liabilities and establishes a hierarchy for which these assets and liabilities must be grouped, based on significant levels of inputs. See Note 14 for more information.

Cash and Cash Equivalents:     Our cash and cash equivalents include short-term, highly liquid investments which are readily convertible into cash. These investments include money market securities and commercial paper with maturities of three months or less when purchased.

Restricted Cash:     Restricted cash primarily consists of security deposits and performance bonds for aircraft and facility leases and funds held in escrow for estimated workers’ compensation obligations.

Accounts and Other Receivables:     Accounts and other receivables are carried at cost. They primarily consist of amounts due from credit card companies associated with sales of tickets for future travel and amounts due from counterparties associated with fuel derivative instruments that have settled. We estimate an allowance for doubtful accounts based on known troubled accounts, if any, and historical experience of losses incurred.

Investment Securities:     Investment securities consist of available-for-sale investment securities and held-to-maturity investment securities. When sold, we use a specific identification method to determine the cost of the securities.

 

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Available-for-sale investment securities:     Our available-for-sale investment securities include (a) highly liquid investments, such as certificates of deposits, with maturities greater than three months when purchased, stated at fair value; (b) variable rate demand notes with stated maturities generally greater than ten years with interest reset dates often every 30 days or less, stated at fair value; and (c) commercial paper with maturities between three and twelve months, stated at fair value.

Held-to-maturity investment securities:     Our held-to-maturity investments consist of investment-grade interest bearing instruments, primarily corporate bonds, stated at amortized cost, which we do not intend to sell. Those with original maturities less than twelve months are included in short-term investments on our consolidated balance sheets, and those with original maturities in excess of twelve months but less than two years are included in long-term investments on our consolidated balance sheets. We did not record any significant gains or losses on these securities during the twelve months ended December 31, 2011, 2010, or 2009. The estimated fair value of these investments approximated their carrying value as of December 31, 2011 and 2010.

The carrying values of investment securities consisted of the following at December 31, 2011 and 2010 (in millions):

 

 

     2011      2010  

Available-for-sale securities

     

Asset-back securities

   $       $ 10   

Time deposits

     70         19   

Commercial paper

     183         125   
  

 

 

    

 

 

 
     253         154   

Held-to-maturity securities

     

Corporate bonds

     313         418   

Municipal bonds

             16   

Government bonds

     25         40   
  

 

 

    

 

 

 
     338         474   
  

 

 

    

 

 

 

Total

   $ 591       $ 628   
  

 

 

    

 

 

 

Derivative Instruments:     Derivative instruments, including fuel hedge contracts and interest rate swap agreements, are stated at fair value, net of any collateral postings. Derivative instruments are included in other current assets and other current liabilities on our consolidated balance sheets.

Inventories:     Inventories consist of expendable aircraft spare parts and supplies, which are stated at average cost, and aircraft fuel, which is accounted for on a first-in, first-out basis. These items are expensed when used or consumed. An allowance for obsolescence on aircraft spare parts is provided over the remaining useful life of the related aircraft fleet.

Property and Equipment:     We record our property and equipment at cost and depreciate these assets on a straight-line basis to their estimated residual values over their estimated useful lives. Additions, modifications that enhance the operating performance of our assets, and interest related to predelivery deposits to acquire new aircraft and for the construction of facilities are capitalized.

 

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Estimated useful lives and residual values for our property and equipment are as follows:

 

 

   

Estimated Useful Life

  Residual Value  

Aircraft

  25 years     20

In-flight entertainment systems

  5 years     0

Aircraft parts

  Fleet life     10

Flight equipment leasehold improvements

  Lower of lease term or economic life     0

Ground property and equipment

  3-10 years     0

Leasehold improvements—other

  Lower of lease term or economic life     0

Buildings on leased land

  Lease term     0

Property under capital leases is initially recorded at an amount equal to the present value of future minimum lease payments computed on the basis of our incremental borrowing rate or, when known, the interest rate implicit in the lease. Amortization of property under capital leases is on a straight-line basis over the expected useful life and is included in depreciation and amortization expense.

We record impairment losses on long-lived assets used in operations when events and circumstances indicate that the assets may be impaired and the undiscounted future cash flows estimated to be generated by the assets are less than the assets’ net book value. If impairment occurs, the loss is measured by comparing the fair value of the asset to its carrying amount. Impairment losses are recorded in depreciation and amortization expense.

Software:     We capitalize certain costs related to the acquisition and development of computer software. We amortize these costs using the straight-line method over the estimated useful life of the software, which is generally between five and ten years. The net book value of computer software, which is included in other assets on our consolidated balance sheets, was $50 million and $46 million at December 31, 2011 and 2010, respectively. Amortization expense related to computer software was $10 million, $13 million and $14 million for the years ended December 31, 2011, 2010 and 2009, respectively. Amortization expense related to computer software capitalized as of December 31, 2011 is expected to be approximately $10 million in 2012, $9 million in 2013, $8 million in 2014, $6 million in 2015, and $4 million in 2016.

Intangible Assets:     Intangible assets consist of acquired take-off and landing slots at certain domestic airports. We record these assets at cost and amortize them on a straight-line basis over their expected useful lives, up to 15 years. In 2011, we acquired eight take-off and landing slots at each of New York’s LaGuardia Airport and Washington D.C.’s Ronald Reagan National Airport for approximately $72 million, of which $40 million was paid as of December 31, 2011. As of December 31, 2011, the cost and accumulated amortization of intangible assets recorded was $76 and $2 million, respectively, and are included in other long term assets on our consolidated balance sheet. Amortization expense related to these intangible assets is expected to be approximately $4 million in 2012 and $5 million per year in each of 2013 through 2016. We periodically evaluate these intangible assets for impairment; however we have not recorded any impairment losses to date through December 31, 2011.

Intangible assets also include an indefinite lived asset related to an air-to-ground spectrum license acquired by LiveTV in 2006 at a public auction from the Federal Communications Commission for approximately $7 million. In September 2010, we determined this spectrum license had been impaired as further discussed in Note 14, which resulted in a loss of approximately $5 million being recorded in other operating expenses during 2010. There was no further impairment in 2011, leaving approximately $2 million remaining in other long term assets related to this license as of December 31, 2011.

Passenger Revenues:     Passenger revenue is recognized net of the taxes that we are required to collect from our customers, including federal transportation taxes, security taxes and airport facility charges, when the

 

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transportation is provided or after the ticket or customer credit (issued upon payment of a change fee) expires. Tickets sold but not yet recognized as revenue and unexpired credits are included in air traffic liability.

Loyalty Program:      We account for our customer loyalty program, TrueBlue, by recording a liability for the estimated incremental cost of providing transportation for outstanding points earned from JetBlue purchases that we expect to be redeemed. We adjust this liability, which is included in air traffic liability, based on points earned and redeemed, changes in the estimated incremental costs associated with providing travel and changes in the TrueBlue program.

Points in TrueBlue are also sold to participating companies, including credit card and car rental companies. These sales are accounted for as multiple-element arrangements, with one element representing the travel that will ultimately be provided when the points are redeemed and the other consisting of marketing related activities that we conduct with the participating company. The fair value of the transportation portion of these point sales is deferred and recognized as passenger revenue when transportation is provided. The marketing portion, which is the excess of the total sales proceeds over the estimated fair value of the transportation to be provided, is recognized in other revenue when the points are sold.

TrueBlue points sold to participating companies which are not redeemed are recognized as revenue when they expire. We recorded $3 million, $13 million and $15 million in revenue related to point expirations in 2011, 2010 and 2009, respectively.

Our original co-branded credit card agreement, under which we sell TrueBlue points as described above, provided for a minimum cash payment guarantee, which was paid to us throughout the life of the agreement if specified point sales and other ancillary activity payments were not achieved, and was subject to refund in the event that cash payments exceeded future minimums through April 2011. We recognized approximately $10 million, $5 million and $5 million of other revenue during 2011, 2010 and 2009, respectively, related to this guarantee.

Upon launch of the new TrueBlue program in November 2009, we extended our co-branded credit card and membership rewards participation agreements. In connection with these extensions, we received a one-time payment of $37 million, which we deferred and are recognizing as other revenue over the term of the agreement through 2015. We have recognized approximately $9 million of revenue related to this one-time payment as of December 31, 2011.

LiveTV Revenues and Expenses:     We account for LiveTV’s revenues and expenses related to the sale of hardware, maintenance of hardware, and programming services provided as a single unit in accordance with the Revenue Recognition-Multiple-Element Arrangements topic of the Codification because we lack objective and reliable evidence of fair value of the undelivered items. Revenues and expenses related to these components are recognized ratably over the service periods, which extend through 2021 as of December 31, 2011. Customer advances to be applied in the next 12 months are included in other current liabilities on our consolidated balance sheets and those beyond 12 months are included in other liabilities on our consolidated balance sheets.

Airframe and Engine Maintenance and Repair:     Regular airframe maintenance for owned and leased flight equipment is charged to expense as incurred unless covered by a third-party services contract. We have separate service agreements covering certain of our scheduled and unscheduled repair of airframe line replacement unit components and the engines on our Airbus A320 aircraft. These agreements, which range from ten to 15 years, require monthly payments at rates based either on the number of cycles each aircraft was operated during each month or the number of flight hours each engine was operated during each month, subject to annual escalations. These power by the hour contracts transfer certain risks to the third-party service providers and fix the amounts we pay per flight hour or number of cycles in exchange for maintenance and repairs under a predefined maintenance program, which are representative of the time and materials that would be consumed. These payments are expensed as the related flight hours or cycles are incurred.

 

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Advertising Costs:     Advertising costs, which are included in sales and marketing, are expensed as incurred. Advertising expense in 2011, 2010 and 2009 was $57 million, $55 million and $53 million, respectively.

Share-Based Compensation:     We record compensation expense in the financial statements for share-based awards based on the grant date fair value of those awards. Share-based compensation expense includes an estimate for pre-vesting forfeitures and is recognized over the requisite service periods of the awards on a straight-line basis, which is generally commensurate with the vesting term.

Under the Compensation-Stock Compensation topic of the Codification, the benefits associated with tax deductions in excess of recognized compensation cost are required to be reported as a financing cash flow. We recorded an insignificant amount in excess tax benefits generated from option exercises in each of 2011, 2010 and 2009.

Our policy is to issue new shares for purchases under all of our stock based plans, including our Crewmember Stock Purchase Plan, or CSPP, and 2011 Crewmember Stock Purchase Plan and issuances under our Amended and Restated 2002 Stock Incentive Plan, or 2002 Plan and our 2011 Incentive Compensation Plan, or 2011 Plan.

Income Taxes:     We account for income taxes utilizing the liability method. Deferred income taxes are recognized for the tax consequences of temporary differences between the tax and financial statement reporting bases of assets and liabilities. A valuation allowance for deferred tax assets is provided unless realizability is judged by us to be more likely than not. Our policy is to recognize interest and penalties accrued on any unrecognized tax benefits as a component of income tax expense.

New Accounting Standards:     Our financial statements are prepared in accordance with the Codification which was established in 2009 and superseded all then existing accounting standard documents and has become the single source of authoritative non-governmental U.S. GAAP. New accounting rules and disclosure requirements can impact our financial results and the comparability of our financial statements. Authoritative literature that has recently been issued which we believe will impact our consolidated financial statements is described below. There are also several new proposals under development, including proposals related to leases, revenue recognition and financial instruments, if and when enacted, may have a significant impact on our financial statements.

In December 2011, the FASB issued Accounting Standards Update 2011-11, or ASU 2011-11, amending the Balance Sheet topic of the Codification. This update enhances the disclosure requirements regarding offsetting assets and liabilities. ASU 2011-11 requires entities to disclose both gross information and net information about both instruments and transactions eligible for offset in the statement of financial position and instruments and transactions subject to an agreement similar to a master netting arrangement. These amendments are effective for annual and interim reporting periods beginning on or after January 1, 2013 and should be applied retrospectively. We will evaluate any instruments and transactions, including derivative instruments, which are eligible for offset but we do not expect that the adoption of this standard will have a material impact on our statement of financial condition.

In June 2011, the FASB issued Accounting Standards Update 2011-05, or ASU 2011-05, amending the Comprehensive Income topic of the Codification. This update changes the requirements for the presentation of other comprehensive income, eliminating the option to present components of other comprehensive income as part of the statement of changes in stockholders’ equity, among other things. ASU 2011-05 requires that all non-owner changes in stockholders’ equity be presented either in a single continuous statement of comprehensive income or in two separate but consecutive statements. These amendments are effective for fiscal years and interim periods beginning after December 15, 2011 and should be applied retrospectively. Since the update only requires a change in presentation, we do not expect that the adoption of this standard will have a material impact on our results of operations, cash flows or financial condition.

 

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In May 2011, the FASB issued Accounting Standards Update 2011-04, or ASU 2011-04, amending the Fair Value Measurement topic of the Codification. The amendments in this update were intended to result in common fair value measurement and disclosure requirements in U.S. GAAP and International Financial Reporting Standards, or IFRS. ASU 2011-04 expands and enhances current disclosures about fair value measurements and clarifies the FASB’s intent about the application of existing fair value measurement requirements in certain circumstances. These amendments are effective for fiscal years and interim periods beginning after December 15, 2011 and should be applied prospectively. Although we continue to review this update, we do not believe that it will have a material impact on our consolidated financial statements or the notes thereto.

On January 1, 2011, the September 2009 Emerging Issues Task Force updates to the Revenue Recognition topic of the Codification rules became effective, which changed the accounting for certain revenue arrangements. The new requirements change the allocation methods used in determining how to account for multiple element arrangements and may result in accounting for more deliverables and potentially change the amount of revenue deferrals. Additionally, this new accounting treatment requires enhanced disclosures in financial statements. This new accounting treatment will impact any new contracts entered into by LiveTV, as well as any TrueBlue loyalty program or commercial partnership arrangements we may enter into or materially modify. Since adoption of this new accounting treatment, we have not entered into any material new or modified contracts.

Effective January 1, 2010, we adopted the latest provisions in the Codification related to the accounting for an entity’s involvement with variable interest entities, or VIEs. Under these rules, the quantitative based method of determining if an entity is the primary beneficiary was replaced with a qualitative assessment on an ongoing basis of which entity has the power to direct activities of the VIE and the obligation to absorb the losses or the right to receive the benefits from the VIE. Adoption of these new rules had no impact on our consolidated financial statements.

Note 2—Long-term Debt, Short-term Borrowings and Capital Lease Obligations

Long-term debt and capital lease obligations and the related weighted average interest rate at December 31, 2011 and 2010 consisted of the following (in millions):

 

 

     2011     2010  

Secured Debt

        

Floating rate equipment notes, due through 2025 (1)

   $ 743        2.8   $ 696        2.5

Floating rate enhanced equipment notes (2) (3)

        

Class G-1, due 2013, 2014 and 2016

     202        3.1     234        2.9

Class G-2, due 2014 and 2016

     373        2.5     373        1.9

Class B-1, due 2014

     49        6.1     49        5.4

Fixed rate equipment notes, due through 2026

     1,192        6.3     1,144        6.3

Fixed rate special facility bonds, due through 2036 (4)

     83        6.0     84        6.0

Unsecured Debt

        

6.75% convertible debentures due in 2039 (5)

     162          201     

5.5% convertible debentures due in 2038 (6)

     123          123     

Capital Leases (7)

     121        3.9     129        3.8
  

 

 

     

 

 

   

Total debt and capital lease obligations

     3,048          3,033     

Less: current maturities

     (198       (183  
  

 

 

     

 

 

   

Long-term debt and capital lease obligations

   $ 2,850        $ 2,850     
  

 

 

     

 

 

   

 

(1) Interest rates adjust quarterly or semi-annually based on the London Interbank Offered Rate, or LIBOR, plus a margin.

 

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(2) In November 2006, we completed a public offering of $124 million of pass-through certificates to finance certain of our owned aircraft spare parts. Separate trusts were established for each class of these certificates. In November 2011, we redeemed $3 million of class G-1 certificates. The remaining principal amount of the Class G-1 and Class B-1 certificates is scheduled to be paid in a lump sum on the applicable maturity date. In April 2009, we entered into interest rate swap agreements that have effectively fixed the interest rate increases for the remaining term of half of the Class G-1 certificates and all of the Class B-1 certificates for the November 2006 offering. The swapped portion of the Class G-1 and Class B-1 certificates had a balance of $37 million and $49 million, respectively, at December 31, 2011, and the effective interest rates included in the above table. The interest rate for the remaining $34 million of the Class G-1 certificates is based on three month LIBOR plus a margin. Interest is payable quarterly.

 

(3) In November 2004 and March 2004, we completed public offerings of $498 million and $431 million, respectively, of pass-through certificates to finance the purchase of 28 new Airbus A320 aircraft delivered through 2005. Separate trusts were established for each class of these certificates. Quarterly principal payments are required on the Class G-1 certificates. The entire principal amount of the Class G-2 certificates is scheduled to be paid in a lump sum on the applicable maturity dates. In June and November 2008, we fully repaid the principal balances of the Class C certificates. In February 2008, we entered into interest rate swap agreements that have effectively fixed the interest rate for the remaining term of the Class G-1 certificates for the November 2004 offering. These certificates had a balance of $91 million at December 31, 2011 and an effective interest rate of 4.5%. In February 2009, we entered into interest rate swap agreements that have effectively fixed the interest rate for the remaining term of the Class G-2 certificates for the November 2004 offering. These certificates had a balance of $185 million at December 31, 2011 and the effective interest rate is included in the above table. The interest rate for all other certificates is based on three month LIBOR plus a margin. Interest is payable quarterly.

 

(4) In December 2006, the New York City Industrial Development Agency issued special facility revenue bonds for JFK and, in November 2005, the Greater Orlando Aviation Authority issued special purpose airport facilities revenue bonds, in each case for reimbursement to us for certain airport facility construction and other costs. We have recorded the principal amount of these bonds, net of discounts, as long-term debt on our consolidated balance sheets because we have issued a guarantee of the debt payments on the bonds. This fixed rate debt is secured by leasehold mortgages of our airport facilities.

 

(5) On June 9, 2009, we completed a public offering of $115 million aggregate principal amount of 6.75% Series A convertible debentures due 2039, or the Series A 6.75% Debentures, and $86 million aggregate principal amount of 6.75% Series B convertible debentures due 2039, or the Series B 6.75% Debentures, and collectively with the Series A 6.75% Debentures, the 6.75% Debentures. The 6.75% Debentures are general obligations and rank equal in right of payment with all of our existing and future senior unsecured debt, effectively junior in right of payment to our existing and future secured debt, including our secured equipment debentures, to the extent of the value of the assets securing such debt, and senior in right of payment to any subordinated debt. In addition, the 6.75% Debentures are structurally subordinated to all existing and future liabilities of our subsidiaries. The net proceeds were approximately $197 million after deducting underwriting fees and other transaction related expenses. Interest on the 6.75% Debentures is payable semi-annually on April 15 and October 15. The first interest payment on the 6.75% Debentures was paid October 15, 2009.

Holders of either the Series A or Series B 6.75% Debentures may convert them into shares of our common stock at any time at a conversion rate of 204.6036 shares per $1,000 principal amount of the 6.75% Debentures. The conversion rates are subject to adjustment should we declare common stock dividends or effect any common stock splits or similar transactions. If the holders convert the 6.75% Debentures in connection with a fundamental change that occurs prior to October 15, 2014 for the Series A 6.75% Debentures or October 15, 2016 for the Series B 6.75% Debentures, the applicable conversion rate may be increased depending on our then current common stock price. The maximum number of shares into which all of the 6.75% Debentures are convertible, including pursuant to this make-whole fundamental change provision, is 235.2941 shares per $1,000 principal amount of the 6.75% Debentures outstanding, as adjusted.

 

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We may redeem any of the 6.75% Debentures for cash at a redemption price of 100% of their principal amount, plus accrued and unpaid interest at any time on or after October 15, 2014 for the Series A 6.75% Debentures and October 15, 2016 for the Series B 6.75% Debentures. Holders may require us to repurchase the 6.75% Debentures for cash at a repurchase price equal to 100% of their principal amount plus accrued and unpaid interest, if any, on October 15, 2014, 2019, 2024, 2029 and 2034 for the Series A 6.75% Debentures and October 15, 2016, 2021, 2026, 2031 and 2036 for the Series B 6.75% Debentures; or at any time prior to their maturity upon the occurrence of a certain designated event.

During 2011, we repurchased a total of $39 million principal amount of our Series A 6.75% Debentures for approximately $45 million. We recognized a loss of approximately $6 million on these transactions, which is included in interest income and other on our consolidated statements of operation during 2011.

We evaluated the various embedded derivatives within the supplemental indenture for bifurcation from the 6.75% Debentures under the applicable provisions, including the basic conversion feature, the fundamental change make-whole provision and the put and call options. Based upon our detailed assessment, we concluded these embedded derivatives were either (i) excluded from bifurcation as a result of being clearly and closely related to the 6.75% Debentures or are indexed to our common stock and would be classified in stockholders’ equity if freestanding or (ii) are immaterial embedded derivatives.

 

(6) On June 4, 2008, we completed a public offering of $100.6 million aggregate principal amount of 5.5% Series A convertible debentures due 2038, or the Series A 5.5% Debentures, and $100.6 million aggregate principal amount of 5.5% Series B convertible debentures due 2038, or the Series B 5.5% Debentures, and collectively with the Series A 5.5% Debentures, the 5.5% Debentures. The 5.5% Debentures are general senior obligations and were originally secured in part by an escrow account for each series. We deposited approximately $32 million of the net proceeds from the offering, representing the first six scheduled semi-annual interest payments on the 5.5% Debentures, into escrow accounts for the exclusive benefit of the holders of each series of the 5.5% Debentures. As of December 31, 2011, all funds originally deposited in the escrow account had been used. The total net proceeds of the offering were approximately $165 million, after deducting underwriting fees and other transaction related expenses as well as the $32 million escrow deposit. Interest on the 5.5% Debentures is payable semi-annually on April 15 and October 15.

Holders of the Series A 5.5% Debentures may convert them into shares of our common stock at any time at a conversion rate of 220.6288 shares per $1,000 principal amount of Series A 5.5% Debenture. Holders of the Series B 5.5% Debentures may convert them into shares of our common stock at any time at a conversion rate of 225.2252 shares per $1,000 principal amount of Series B 5.5% Debenture. The conversion rates are subject to adjustment should we declare common stock dividends or effect any common stock splits or similar transactions. If the holders convert the 5.5% Debentures in connection with any fundamental corporate change that occurs prior to October 15, 2013 for the Series A 5.5% Debentures or October 15, 2015 for the Series B 5.5% Debentures, the applicable conversion rate may be increased depending upon our then current common stock price. The maximum number of shares of common stock into which all of the 5.5% Debentures are convertible, including pursuant to this make-whole fundamental change provision, is 54.4 million shares. Holders who converted their 5.5% Debentures prior to April 15, 2011 received, in addition to the number of shares of our common stock calculated at the applicable conversion rate, a cash payment from the escrow account for the 5.5% Debentures of the series converted equal to the sum of the remaining interest payments that would have been due on or before April 15, 2011 in respect of the converted 5.5% Debentures.

We may redeem any of the 5.5% Debentures for cash at a redemption price of 100% of their principal amount, plus accrued and unpaid interest at any time on or after October 15, 2013 for the Series A 5.5% Debentures and October 15, 2015 for the Series B 5.5% Debentures. Holders may require us to repurchase the 5.5% Debentures for cash at a repurchase price equal to 100% of their principal amount plus accrued and unpaid interest, if any, on October 15, 2013, 2018, 2023, 2028, and 2033 for the Series A 5.5% Debentures and October 15, 2015, 2020, 2025, 2030, and 2035 for the Series B 5.5% Debentures; or at any time prior to their maturity upon the occurrence of a specified designated event.

 

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On June 4, 2008, in conjunction with the public offering of the 5.5% Debentures described above, we also entered into a share lending agreement with Morgan Stanley & Co. Incorporated, an affiliate of the underwriter of the offering, or the share borrower, pursuant to which we loaned the share borrower approximately 44.9 million shares of our common stock. Under the share lending agreement, the share borrower is required to return the borrowed shares when the debentures are no longer outstanding. We did not receive any proceeds from the sale of the borrowed shares by the share borrower, but we did receive a nominal lending fee of $0.01 per share from the share borrower for the use of borrowed shares.

Our share lending agreement requires that the shares borrowed be returned upon the maturity of the related debt, October 2038, or earlier, if the debentures are no longer outstanding. We determined the fair value of the share lending arrangement was approximately $5 million at the date of the issuance based on the value of the estimated fees the shares loaned would have generated over the term of the share lending arrangement. The $5 million fair value was recognized as a debt issuance cost and is being amortized to interest expense through the earliest put date of the related debt, October 2013 and October 2015 for Series A and Series B, respectively. As of December 31, 2011, approximately $1 million of net debt issuance costs remain outstanding related to the share lending arrangement and will continue to be amortized through the earliest put date of the related debt.

During 2008, approximately $76 million principal amount of the 5.5% Debentures were voluntarily converted by holders. As a result, we issued 16.9 million shares of our common stock. Cash payments from the escrow accounts related to these conversions were $11 million and borrowed shares equivalent to the number of shares of our common stock issued upon these conversions were returned to us pursuant to the share lending agreement described above. During 2009, approximately $3 million principal amount of the 5.5% Debentures were voluntarily converted by holders into approximately 0.6 million shares of our common stock. The borrower returned 10.0 million shares to us in September 2009, almost all of which were voluntarily returned shares in excess of converted shares, pursuant to the share lending agreement. In October 2011, approximately 16.6 million shares were voluntarily returned to us by the borrower, leaving 1.4 million shares outstanding under the share lending arrangement. The fair value of similar common shares not subject to our share lending arrangement, based upon our closing stock price, was approximately $7 million. At December 31, 2011, the remaining principal balance was $123 million, which is currently convertible into 27.4 million shares of our common stock.

 

(7) At December 31, 2011 and 2010, four capital leased Airbus A320 aircraft were included in property and equipment at a cost of $152 million with accumulated amortization of $23 million and $18 million, respectively. The future minimum lease payments under these non-cancelable leases are $14 million in each of 2012 through 2016 and $96 million in the years thereafter. Included in the future minimum lease payments is $46 million representing interest, resulting in a present value of capital leases of $121 million with a current portion of $7 million and a long-term portion of $114 million.

Maturities of long-term debt and capital leases, including the assumption that our convertible debt will be redeemed upon the first put date, for the next five years are as follows (in millions):

 

 

2012

   $ 198   

2013

     397   

2014

     576   

2015

     262   

2016

     460   

We are subject to certain collateral ratio requirements in our spare parts pass-through certificates and spare engine financing issued in November 2006 and December 2007, respectively. If we fail to maintain these collateral ratios, we are required to provide additional collateral or redeem some or all of the equipment notes so that the ratios return to compliance. As a result of reduced third party valuation of these parts, we pledged as collateral a previously unencumbered spare engine with a carrying market value of approximately $7 million during the second quarter of 2011. In order to maintain the ratios, we elected to redeem $3 million of the equipment notes in November 2011.

 

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Aircraft, engines, and other equipment and facilities having a net book value of $3.71 billion at December 31, 2011 were pledged as security under various loan agreements. Cash payments for interest related to debt and capital lease obligations, net of capitalized interest, aggregated $136 million, $138 million and $143 million in 2011, 2010 and 2009, respectively.

The carrying amounts and estimated fair values of our long-term debt at December 31, 2011 and 2010 were as follows (in millions):

 

 

     December 31, 2011      December 31, 2010  
     Carrying
Value
     Estimated
Fair Value
     Carrying
Value
     Estimated
Fair Value
 

Public Debt

           

Floating rate enhanced equipment notes

           

Class G-1, due 2013, 2014, and 2016

   $ 202       $ 185       $ 234       $ 210   

Class G-2, due 2014 and 2016

     373         316         373         312   

Class B-1, due 2014

     49         47         49         46   

Fixed rate special facility bonds, due through 2036

     83         76         84         75   

6.75% convertible debentures due in 2039

     162         214         201         293   

5.5% convertible debentures due in 2038

     123         162         123         194   

Non-Public Debt

           

Floating rate equipment notes, due through 2025

     743         712         696         654   

Fixed rate equipment notes, due through 2026

     1,192         1,293         1,144         1,132   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 2,927       $ 3,005       $ 2,904       $ 2,916   
  

 

 

    

 

 

    

 

 

    

 

 

 

The estimated fair values of our publicly held long-term debt were based on quoted market prices or other observable market inputs when instruments are not actively traded. The fair value of our non-public debt was estimated using discounted cash flow analysis based on our borrowing rates for instruments with similar terms. The fair values of our other financial instruments approximate their carrying values.

We utilize a policy provider to provide credit support on the Class G-1 and Class G-2 certificates. The policy provider has unconditionally guaranteed the payment of interest on the certificates when due and the payment of principal on the certificates no later than 18 months after the final expected regular distribution date. The policy provider is MBIA Insurance Corporation (a subsidiary of MBIA, Inc.).

We have determined that each of the trusts related to our aircraft EETCs meet the definition of a variable interest entity as defined in the Consolidations topic of the Codification and must be considered for consolidation in our financial statements. Our assessment of the EETCs considers both quantitative and qualitative factors, including whether we have the power to direct the activities and to what extent we participate in the sharing of benefits and losses. We evaluated the purpose for which these trusts were established and nature of risks in each. These trusts were not designed to pass along variability to us. We concluded that we are not the primary beneficiary in these trusts due to our involvement in them being limited to principal and interest payments on the related notes and the variability created by credit risk related to us and the likelihood of our defaulting on the notes. Therefore, we have not consolidated these trusts in our financial statements.

Short-term Borrowings

In September 2011, we entered into a corporate purchasing line with American Express, which allows us to borrow up to a maximum of $125 million. Borrowings cannot exceed $30 million per week and may only be used for the purchase of jet fuel. Borrowings on this corporate purchasing line are subject to our compliance with the terms and conditions of the credit agreement, including certain financial covenants which include a requirement to maintain certain cash and short term investment levels and a minimum earnings before income

 

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taxes, interest, depreciation and amortization, or EBITDA margin, as well as customary events of default. Borrowings, which are to be paid monthly, are subject to a 6.9% annual interest rate but could be higher if borrowing activity does not reach certain levels. This borrowing facility will terminate no later than December 31, 2014. As of December 31, 2011, there was $88 million outstanding under this revolving credit facility which is included in short-term borrowings on our consolidated balance sheet. During January 2012, we made payments of $44 million against the facility.

Note 3—Operating Leases

We lease aircraft, as well as airport terminal space, other airport facilities, office space and other equipment, under leases which expire in various years through 2035. Total rental expense for all operating leases in 2011, 2010 and 2009 was $269 million, $245 million and $236 million, respectively. We have $33 million in assets that serve as collateral for letters of credit related to certain of our leases, which are included in restricted cash.

During 2011, we extended the leases on four Airbus A320 aircraft; leases which were previously set to expire in 2012. These extensions resulted in an additional $19 million of lease commitments through 2015. Also, in 2011, we returned one EMBRAER E190 aircraft to its lessor, upon expiration of the lease term.

During 2010, we leased six used Airbus A320 aircraft from a third party, each with a separate six year operating lease term.

At December 31, 2011, 60 of the 169 aircraft we operated were leased under operating leases, with lease expiration dates ranging from 2013 to 2026. As of December 31, 2011, three of our Airbus A320 aircraft leases were scheduled to expire within 18 months. Five of the 60 aircraft operating leases have variable rate rent payments based on LIBOR. Leases for 53 of our aircraft can generally be renewed at rates based on fair market value at the end of the lease term for one or two years. We have purchase options in 45 of our aircraft leases at the end of the lease term at fair market value and a one-time option during the term at fixed amounts that were expected to approximate fair market value at lease inception.

In 2010, we executed a supplement to our Terminal 5 lease with the Port Authority of New York and New Jersey, or PANYNJ. Under this supplement, we will lease the 19.35 acre portion of JFK known as Terminal 6, which is adjacent to our current facility at Terminal 5. We were responsible for the demolishing, and related activities, of the Terminal 6 passenger terminal buildings, the costs of which will be reimbursed by the PANYNJ. We intend to use this property primarily for maintaining, deicing, and parking aircraft during the five year term. The lease supplement also contains an option to extend our current Terminal 5 structure onto this property.

In March 2010, we announced we will be combining our Darien, CT and Forest Hills, NY corporate offices and relocating to a new corporate headquarters in Long Island City, NY. In September 2010, we executed a lease for our new corporate headquarters in Long Island City for a 12 year term.

Future minimum lease payments under noncancelable operating leases, including those described above, with initial or remaining terms in excess of one year at December 31, 2011, are as follows (in millions):

 

 

     Aircraft      Other      Total  

2012

   $ 147       $ 58       $ 205   

2013

     127         49         176   

2014

     132         39         171   

2015

     138         34         172   

2016

     77         30         107   

Thereafter

     396         351         747   
  

 

 

    

 

 

    

 

 

 

Total minimum operating lease payments

   $ 1,017       $ 561       $ 1,578   
  

 

 

    

 

 

    

 

 

 

 

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We have entered into sale-leaseback arrangements with a third party lender for 45 of our operating aircraft. The sale-leasebacks occurred simultaneously with the delivery of the related aircraft to us from their manufacturers. Each sale-leaseback transaction was structured with a separate trust set up by the third party lender, the assets of which consist of the one aircraft initially transferred to it following the sale by us and the subsequent lease arrangement with us. Because of their limited capitalization and the potential need for additional financial support, these trusts are variable interest entities as defined in the Consolidations topic of the Codification and must be considered for consolidation in our financial statements. Our assessment of each trust considers both quantitative and qualitative factors, including whether we have the power to direct the activities and to what extent we participate in the sharing of benefits and losses of the trusts. JetBlue does not retain any equity interests in any of these trusts and our obligations to them are limited to the fixed rental payments we are required to make to them, which were approximately $901 million as of December 31, 2011 and are reflected in the future minimum lease payments in the table above. Our only interest in these entities are the purchase options to acquire the aircraft as specified above. Since there are no other arrangements (either implicit or explicit) between us and the individual trusts that would result in our absorbing additional variability from the trusts, we concluded that we are not the primary beneficiary of these trusts. We account for these leases as operating leases, following the appropriate lease guidance as required by the Leases topic in the Codification.

Operating Leases as Lessor :    In 2008, we leased two of our owned EMBRAER 190 aircraft, each with a lease term of 12 years. The net book value of these two aircraft was approximately $46 million and $48 million as of December 31, 2011 and 2010, respectively, and is included in other assets on our consolidated balance sheet. Under the terms of these leases, we recorded approximately $6 million, in rental income during each of 2011, 2010 and 2009. Future lease payments due to us under these leases are approximately $6 million per year through 2020.

Note 4—JFK Terminal 5

In 2008, we began operating out of our new Terminal 5 at JFK, or Terminal 5. The construction and operation of this facility is governed by various lease agreements with the PANYNJ. Under the terms of the facility lease agreement, we were responsible for the construction of a 635,000 square foot 26-gate terminal, a parking garage, roadways and an AirTrain Connector, all of which are owned by the PANYNJ and which are collectively referred to as the Project. We are responsible for various payments under the lease, including ground rents for the new terminal site which began on lease execution in 2005 and are reflected in the future minimum lease payments table in Note 3, and facility rents which commenced in 2008 when we took beneficial occupancy of Terminal 5, and are included below. The facility rents are based on the number of passengers enplaned out of the terminal, subject to annual minimums. The lease terms end in 2038 and we have a one-time early termination option in 2033.

We were considered the owner of the Project for financial reporting purposes only and have been required to reflect an asset and liability for the Project on our consolidated balance sheets since construction commenced in 2005. Since certain elements of the Project, including the parking garage and AirTrain Connector, are not subject to the underlying ground lease, following their delivery to and acceptance by the PANYNJ in October 2008, we removed them from our consolidated balance sheets. Our continuing involvement in the remainder of the Project precludes us from sale and leaseback accounting; therefore the cost of these elements of the Project and the related liability will remain on our consolidated balance sheets and be accounted for as a financing.

Through December 31, 2011, total costs incurred for the elements of the Project which are subject to the underlying ground lease were $637 million, $561 million of which is reflected as Assets Constructed for Others and $76 million of which are leasehold improvements included in ground property and equipment in our consolidated balance sheets. These amounts reflect a non-cash $133 million reduction in 2008 for costs incurred for the elements that were not subject to the underlying ground lease. Assets Constructed for Others are being amortized over the shorter of the 25 year non-cancelable lease term or their economic life. We recorded $22 million in amortization expense in each of 2011 and 2010, and $21 million in 2009.

 

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The PANYNJ has reimbursed us for the amounts currently included in Assets Constructed for Others, exclusive of capitalized interest of $68 million. These reimbursements and the capitalized interest are reflected as Construction Obligation in our consolidated balance sheets. As facility rents are paid, they are treated as debt service on the Construction Obligation, with the portion not relating to interest reducing the principal balance. Minimum estimated facility payments, including escalations, associated with the facility lease are estimated to be $39 million in 2012, $40 million in each of 2013 through 2016 and $697 million thereafter. The portion of these scheduled payments serving to reduce the principal balance of the Construction Obligation is $12 million in 2012, $13 million in 2013, $14 million in 2014, and $15 million in each of 2015 and 2016. Payments could exceed these amounts depending on future enplanement levels at JFK. Scheduled facility payments representative of interest totaled $28 million, $27 million and $32 million in 2011, 2010 and 2009, respectively.

We have subleased a portion of Terminal 5, primarily space for concessionaires. Minimum lease payments due to us are subject to various escalation amounts through 2019 and also include a percentage of gross receipts, which may vary from month to month. Future minimum lease payments due to us during each of the next five years are estimated to be $11 million per year in each of 2012 through 2014, $12 million in 2015, and $11 million in 2016.

Note 5—Stockholders’ Equity

In May 2010, at our annual meeting of stockholders, shareholders approved an amendment to our Amended and Restated Certificate of Incorporation to increase the Company’s authorized capital from 500 million common shares to 900 million common shares. Our authorized shares of capital stock also consist of 25 million shares of preferred stock. The holders of our common stock are entitled to one vote per share on all matters which require a vote by the Company’s stockholders as set forth in our Amended and Restated Certificate of Incorporation and Bylaws.

Pursuant to our amended Stockholder Rights Agreement, which became effective in February 2002, each share of common stock has attached to it a right and, until the rights expire or are redeemed, each new share of common stock issued by the Company will include one right. Upon the occurrence of certain events described below, each right entitles the holder to purchase one one-thousandth of a share of Series A participating preferred stock at an exercise price of $35.55, subject to further adjustment. The rights become exercisable only after any person or group acquires beneficial ownership of 15% or more (25% or more in the case of certain specified stockholders) of the Company’s outstanding common stock or commences a tender or exchange offer that would result in such person or group acquiring beneficial ownership of 15% or more (25% or more in the case of certain stockholders) of the Company’s common stock. If after the rights become exercisable, the Company is involved in a merger or other business combination or sells more than 50% of its assets or earning power, each right will entitle its holder (other than the acquiring person or group) to receive common stock of the acquiring company having a market value of twice the exercise price of the rights. The rights expire on April 17, 2012 and may be redeemed by the Company at a price of $.01 per right prior to the time they become exercisable.

As of December 31, 2011, we had a total of 191.6 million shares of our common stock reserved for issuance related to our 2011 Plan, our 2002 Plan, our 2011 CSPP, our original CSPP our convertible debt, and our share lending facility. As of December 31, 2011, we had a total of 44.8 million shares of treasury stock, almost all of which resulted from the return of borrowed shares under our share lending agreement. Refer to Note 2 for further details on the share lending agreement and Note 7 for further details on our share-based compensation.

 

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Note 6—Earnings Per Share

The following table shows how we computed basic and diluted earnings per common share for the years ended December 31 (dollars in millions; share data in thousands):

 

 

     2011      2010      2009  

Numerator:

        

Net income

   $ 86       $ 97       $ 61   

Effect of dilutive securities:

        

Interest on convertible debt, net of income taxes and discretionary profit sharing

     12         11         9   
  

 

 

    

 

 

    

 

 

 

Net income applicable to common stockholders after assumed conversion for diluted earnings per share

   $ 98       $ 108       $ 70   
  

 

 

    

 

 

    

 

 

 

Denominator:

        

Weighted-average shares outstanding for basic earnings per share

     278,689         275,364         260,486   

Effect of dilutive securities:

        

Employee stock options

     1,660         2,611         2,972   

Convertible debt

     66,118         68,605         68,605   
  

 

 

    

 

 

    

 

 

 

Adjusted weighted-average shares outstanding and assumed conversions for diluted earnings per share

     346,467         346,580         332,063   
  

 

 

    

 

 

    

 

 

 

Shares excluded from EPS calculation (in millions):

        

Shares issuable upon conversion of our convertible debt since assumed conversion would be antidilutive

                     9.2   

Shares issuable upon exercise of outstanding stock options since assumed exercise would be antidilutive

     22.3         24.0         23.9   

As of December 31, 2011, a total of approximately 1.4 million shares of our common stock, which were lent to our share borrower pursuant to the terms of our share lending agreement as described in Note 2, were issued and outstanding for corporate law purposes. Holders of the borrowed shares have all the rights of a holder of our common stock. However, because the share borrower must return all borrowed shares to us (or identical shares or, in certain circumstances of default by the counterparty, the cash value thereof), the borrowed shares are not considered outstanding for the purpose of computing and reporting basic or diluted earnings per share.

Note 7—Share-Based Compensation

2011 Incentive Compensation Plan:     At our Annual Shareholders Meeting held on May 26, 2011, our shareholders approved the new 2011 Plan, which replaced the 2002 Plan, which was set to expire at the end of 2011. Upon inception, the 2011 Plan had 15.0 million shares of our common stock reserved for issuance. The 2011 Plan, by its terms, will terminate no later than May 2021. Since adoption of the 2011 Plan, we have only granted an insignificant amount of restricted stock units.

Crewmember Stock Purchase Plan:     In May 2011, our shareholders also approved the new 2011 Crewmember Stock Purchase Plan, or the 2011 CSPP, to replace the original Crewmember Stock Purchase Plan, which was set to expire in April 2012. The 2011 CSPP has 8.0 million shares of our common stock reserved for issuance. The 2011 CSPP, by its terms, will terminate no later than the last business day of April 2021. The other terms of the 2011 CSPP are substantially similar to those of the original CSPP. As of December 31, 2011, there have been no issuances under the 2011 CSPP.

 

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Fair Value Assumptions:     We used a Black-Scholes-Merton option pricing model to estimate the fair value of share-based awards in accordance with the Compensation-Stock Compensation topic of the Codification, for stock options under our 2002 Plan. The Black-Scholes-Merton option pricing model incorporates various and highly subjective assumptions, including expected term and expected volatility. We reviewed our historical pattern of option exercises under our 2002 Plan, and determined that meaningful differences in option exercise activity existed among employee job categories. Therefore, for all stock options granted after January 1, 2006, we have categorized these awards into three groups of employees for valuation purposes.

We estimated the expected term of options granted using an implied life derived from the results of a lattice model, which incorporates our historical exercise and post-vesting employment termination patterns, which we believe are representative of future behavior. The expected term for our restricted stock units is based on the associated service period.

We estimated the expected volatility of our common stock at the grant date using a blend of 75% historical volatility of our common stock and 25% implied volatility of two-year publicly traded options on our common stock as of the option grant date. Our decision to use a blend of historical and implied volatility was based upon the volume of actively traded options on our common stock and our belief that historical volatility alone may not be completely representative of future stock price trends.

Our risk-free interest rate assumption was determined using the Federal Reserve nominal rates for U.S. Treasury zero-coupon bonds with maturities similar to those of the expected term of the award being valued. We have never paid any cash dividends on our common stock and we do not anticipate paying any cash dividends in the foreseeable future. Therefore, we assumed an expected dividend yield of zero.

Additionally, the Compensation-Stock Compensation topic of the Codification requires us to estimate pre-vesting forfeitures at the time of grant and periodically revise those estimates in subsequent periods if actual forfeitures differ from those estimates. We record stock-based compensation expense only for those awards expected to vest using an estimated forfeiture rate based on our historical pre-vesting forfeiture data.

We have not granted any stock options since 2008.

Unrecognized stock-based compensation expense was approximately $15 million as of December 31, 2011, relating to a total of 4.2 million unvested restricted stock units and 0.3 million unvested stock options under our 2002 Plan and 2011 Plan. We expect to recognize this stock-based compensation expense over a weighted average period of approximately two years. The total fair value of stock options vested during the year was approximately $5 million in 2011 and $9 million in each of the years ended December 31, 2010 and 2009.

Amended and Restated 2002 Stock Incentive Plan:     The 2002 Plan, which included stock options issued during 1999 through 2001 under a previous plan as well as all options issued since, provides for incentive and non-qualified stock options and restricted stock units to be granted to certain employees and members of our Board of Directors, as well as deferred stock units to be granted to members of our Board of Directors. The 2002 Plan became effective following our initial public offering in April 2002.

Beginning in 2007, we began issuing restricted stock units under the 2002 Plan. These awards vest in annual installments over three years or could be accelerated upon the occurrence of a change in control as defined in the 2002 Plan. Our policy is to grant restricted stock units based on the market price of the underlying common stock on the date of grant.

 

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The following is a summary of restricted stock unit activity under the 2002 Plan for the year ended December 31:

 

 

     2011      2010      2009  
     Shares     Weighted
Average
Grant Date
Fair Value
     Shares     Weighted
Average
Grant Date
Fair Value
     Shares     Weighted
Average
Grant Date
Fair Value
 

Nonvested at beginning of year

     3,681,013      $ 5.18         3,310,374      $ 5.13         1,735,671      $ 6.22   

Granted

     2,677,809        6.01         2,086,973        5.36         2,294,240        4.61   

Vested

     (1,731,145     5.26         (1,262,459     5.32         (595,105     6.28   

Forfeited

     (534,193     5.53         (453,875     5.21         (124,432     5.36   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

Nonvested at end of year

     4,093,484      $ 5.64         3,681,013      $ 5.18         3,310,374      $ 5.13   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

The total intrinsic value, determined as of the date of vesting, of restricted stock units vested and converted to shares of common stock during the twelve months ended December 31, 2011 and 2010 was $10 million and $7 million, respectively.

We began issuing deferred stock units in 2008 under the 2002 Plan to members of our Board of Directors. Prior to 2011, these awards vested immediately upon being granted. Beginning in 2011, the vesting period was changed to either one or three years of service. Once vested, shares are issued six months and one day following the Director’s departure from the Board. During the year ended December 31, 2011, we granted an insignificant amount of deferred stock units, all of which remain outstanding at December 31, 2011.

Prior to January 1, 2006, stock options under the 2002 Plan became exercisable when vested, which occurred in annual installments of three to seven years. For issuances under the 2002 Plan beginning in 2006, we revised the vesting terms so that all options granted vest in equal installments over a period of three or five years, or upon the occurrence of a change in control. All options issued under the 2002 Plan expire ten years from the date of grant. Our policy is to grant options with an exercise price equal to the market price of the underlying common stock on the date of grant.

The following is a summary of stock option activity for the years ended December 31:

 

 

     2011      2010      2009  
     Shares     Weighted
Average
Exercise
Price
     Shares     Weighted
Average
Exercise
Price
     Shares     Weighted
Average
Exercise
Price
 

Outstanding at beginning of year

     23,600,494      $ 13.42         25,592,883      $ 12.88         27,242,115      $ 12.47   

Granted

                                            

Exercised

     (934,993     2.09         (1,158,187     1.61         (960,626     0.78   

Forfeited

     (23,700     8.92         (27,605     11.32         (93,062     11.00   

Expired

     (834,631     13.33         (806,597     13.40         (595,544     13.99   
  

 

 

      

 

 

      

 

 

   

Outstanding at end of year

     21,807,170        13.91         23,600,494        13.42         25,592,883        12.88   
  

 

 

      

 

 

      

 

 

   

Vested at end of year

     21,550,526        13.94         22,504,450        13.47         23,101,559        12.86   

Available for future grants

     50,494,384           39,997,981           29,189,222     

 

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The following is a summary of outstanding stock options at December 31, 2011:

 

 

    Options Outstanding     Options Vested and Exercisable  

Range of
exercise prices

  Shares     Weighted
Average
Remaining
Contractual
Life (years)
    Weighted
Average
Exercise
Price
    Aggregate
Intrinsic
Value
(millions)
    Shares     Weighted
Average
Remaining
Contractual
Life (years)
    Weighted
Average
Exercise
Price
    Aggregate
Intrinsic
Value
(millions)
 

$4.00 to $4.00

    486,803        0.1      $ 4.00      $ 1        486,803        0.1      $ 4.00      $ 1   

$7.03 to $29.71

    21,320,367        2.6        14.14               21,063,723        2.6        14.17          
 

 

 

       

 

 

   

 

 

       

 

 

 
    21,807,170          $ 1        21,550,526          13.94      $ 1   
 

 

 

       

 

 

   

 

 

       

 

 

 

The total intrinsic value, determined as of the date of exercise, of options exercised during the twelve months ended December 31, 2011, 2010 and 2009 was $3 million, $5 million and $4 million, respectively. We received $2 million, $2 million and $1 million in cash from option exercises for the years ended December 31, 2011, 2010 and 2009, respectively.

Under the 2002 Plan, the number of shares reserved for issuance automatically increased each January by an amount equal to 4% of the total number of shares of our common stock outstanding on the last trading day in December of the prior calendar year. This automatic reload feature was eliminated with the adoption of the new 2011 Plan.

Crewmember Stock Purchase Plan:     Our CSPP, which was available to all employees, had 5.1 million shares of our common stock initially reserved for issuance at its inception in April 2002. Through 2008, the reserve automatically increased each January by an amount equal to 3% of the total number of shares of our common stock outstanding on the last trading day in December of the prior calendar year. The CSPP was amended in 2008 to eliminate this automatic reload.

The 2011 CSPP, as did the original CSPP, has a series of successive overlapping 6-month offering periods, with a new offering period beginning on the first business day of May and November each year. Employees can only join an offering period on the start date. Employees may contribute up to 10% of their pay, through payroll deductions, toward the purchase of common stock. Purchase dates occur on the last business day of April and October each year.

CSPP participation is considered non-compensatory as the purchase price discount is only 5% based upon the stock price on the date of purchase.

Should we be acquired by merger or sale of substantially all of our assets or sale of more than 50% of our outstanding voting securities, then all outstanding purchase rights will automatically be exercised immediately prior to the effective date of the acquisition at a price equal to 95% of the fair market value per share immediately prior to the acquisition.

The following is a summary of CSPP share reserve activity for the years ended December 31:

 

 

     2011      2010      2009  
     Shares     Weighted
Average
     Shares     Weighted
Average
     Shares     Weighted
Average
 

Available for future purchases, beginning of year

     20,923,959           22,169,558           23,550,382     

Shares reserved for issuance

                             

Common stock purchased

     (1,617,602   $ 4.76         (1,245,599   $ 5.96         (1,380,824   $ 4.82   
  

 

 

      

 

 

      

 

 

   

Available for future purchases, end of year

     19,306,357           20,923,959           22,169,558     
  

 

 

      

 

 

      

 

 

   

 

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The Compensation-Stock Compensation topic of the Codification requires that deferred taxes be recognized on temporary differences that arise with respect to stock-based compensation attributable to nonqualified stock options and awards. However, no tax benefit is recognized for stock-based compensation attributable to incentive stock options (ISO) or CSPP shares until there is a disqualifying disposition, if any, for income tax purposes. A portion of our stock-based compensation is attributable to ISO and CSPP shares; therefore, our effective tax rate is subject to fluctuation.

LiveTV Equity Incentive Plan.     In April 2009, our Board of Directors approved the LiveTV Equity Incentive Plan, or EIP, an equity based incentive plan for certain members of leadership at our wholly-owned subsidiary, LiveTV. Notional equity units were available under the EIP, representing up to 12% of the notional equity interest of LiveTV. Compensation cost was recorded ratably over the service period. In May 2011, we terminated the EIP. In exchange for the release of their rights under the EIP, participants were granted restricted stock units under the 2002 Plan in May 2011.

Note 8—LiveTV

Through December 31, 2011, LiveTV had installed in-flight entertainment systems for other airlines on 413 aircraft and had firm commitments for installations on 110 additional aircraft scheduled to be installed through 2014, with options for 31 additional installations through 2013. Revenues in 2011, 2010 and 2009 were $82 million, $72 million and $65 million, respectively. Deferred profit on hardware sales and advance deposits for future hardware sales are included in other accrued liabilities and other long term liabilities on our consolidated balance sheets depending on whether we expect to recognize it in the next 12 months or beyond and was a total of $54 million and $35 million at December 31, 2011 and 2010, respectively. Deferred profit to be recognized on installations completed through December 31, 2011 will be approximately $3 million per year from 2012 through 2016 and $10 million thereafter. The net book value of equipment installed for other airlines was approximately $111 million and $114 million as of December 31, 2011 and 2010, respectively, and is included in other assets on our consolidated balance sheets.

In December 2011, LiveTV terminated its contract with one of its other airline customers, which had in-flight entertainment systems installed on 140 aircraft at the time of termination, which are excluded from the totals above. In connection with the termination, the customer paid approximately $16 million, which is included in other accrued liabilities on the consolidated balance sheet as of December 31, 2011. We expect to record a gain in the first quarter of 2012 related to the termination of this contract upon fulfilling our obligation to deactivate service on the installed aircraft. As of December 31, 2011, we had approximately $8 million included in other assets on the consolidated balance sheet that will be disposed of during the first quarter of 2012.

Note 9—Income Taxes

The provision for income taxes consisted of the following for the years ended December 31 (in millions):

 

 

     2011      2010      2009  

Deferred:

        

Federal

   $ 51       $ 55       $ 35   

State

     7         7         7   
  

 

 

    

 

 

    

 

 

 

Deferred income tax expense

     58         62         42   

Current income tax expense

     1         2         1   
  

 

 

    

 

 

    

 

 

 

Total income tax expense

   $ 59       $ 64       $ 43   
  

 

 

    

 

 

    

 

 

 

 

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The effective tax rate on income before income taxes differed from the federal income tax statutory rate for the years ended December 31 for the following reasons (in millions):

 

     2011      2010     2009  

Income tax expense at statutory rate

   $ 51       $ 57      $ 36   

Increase (decrease) resulting from:

       

State income tax, net of federal benefit

     5         6        4   

Non-deductible meals

     2         2        2   

Valuation allowance

             (2     (1

Other, net

     1         1        2   
  

 

 

    

 

 

   

 

 

 

Total income tax expense

   $ 59       $ 64      $ 43   
  

 

 

    

 

 

   

 

 

 

Cash payments for income taxes were zero in 2011, $1 million in 2010 and zero in 2009.

The net deferred taxes below include a current net deferred tax asset of $99 million and a long-term net deferred tax liability of $392 million at December 31, 2011, and a current net deferred tax asset of $89 million and a long-term net deferred tax liability of $327 million at December 31, 2010.

The components of our deferred tax assets and liabilities as of December 31 are as follows (in millions):

 

 

     2011     2010  

Deferred tax assets:

    

Net operating loss carryforwards

   $ 175      $ 186   

Employee benefits

     37        35   

Deferred revenue/gains

     92        86   

Derivative instruments

     12        6   

Capital loss carryforwards

     20        20   

Other

     24        26   

Valuation allowance

     (21     (21
  

 

 

   

 

 

 

Deferred tax assets

     339        338   

Deferred tax liabilities:

    

Accelerated depreciation

     (632     (576
  

 

 

   

 

 

 

Deferred tax liabilities

     (632     (576
  

 

 

   

 

 

 

Net deferred tax liability

   $ (293   $ (238
  

 

 

   

 

 

 

At December 31, 2011, we had U.S. Federal regular and alternative minimum tax net operating loss (“NOL”) carryforwards of $495 million and $460 million, respectively, which begin to expire in 2024. In addition, at December 31, 2011, we had deferred tax assets associated with state NOL and credit carryforwards of $14 million and $3 million, respectively. The state NOLs begin to expire in 2012, while the credits carry forward indefinitely. Our NOL carryforwards at December 31, 2011 include an unrecorded benefit of approximately $9 million related to stock-based compensation that will be recorded in equity when, and to the extent, realized. Section 382 of the Internal Revenue Code imposes limitations on a corporation’s ability to use its NOL carryforwards if it experiences an “ownership change.” As of December 31, 2011, our valuation allowance did not include any amounts attributable to this limitation; however, if an “ownership change” were to occur in the future, the ability to use our NOLs could be limited.

In evaluating the realizability of the deferred tax assets, we assess whether it is more likely than not that some portion, or all, of the deferred tax assets, will be realized. We consider, among other things, the generation of future taxable income (including reversals of deferred tax liabilities) during the periods in which the related temporary differences will become deductible. At December 31, 2011, we provided a $21 million valuation

 

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allowance to reduce the deferred tax assets to an amount that we consider is more likely than not to be realized. Our valuation allowance at December 31, 2011 includes $20 million related to a capital loss carryforward which expires in 2015 and 2016.

A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follow (in millions):

 

 

Unrecognized tax benefits December 31, 2008

   $ 8   

Increases for tax positions taken during the period

     1   
  

 

 

 

Unrecognized tax benefits December 31, 2009

     9   

Increases for tax positions taken during the period

     2   
  

 

 

 

Unrecognized tax benefits December 31, 2010

     11   

Increases for tax positions taken during the period

     1   
  

 

 

 

Unrecognized tax benefits December 31, 2011

   $ 12   
  

 

 

 

Interest and penalties accrued on unrecognized tax benefits were not significant. If recognized, $9 million of the unrecognized tax benefits at December 31, 2011 would impact our effective tax rate. We do not expect any significant change in the amount of the unrecognized tax benefits within the next twelve months. As a result of NOLs and statute of limitations in our major tax jurisdictions, years 2001 through 2010 remain subject to examination by the relevant tax authorities.

Note 10—Employee Retirement Plan

We sponsor a retirement savings 401(k) defined contribution plan, or the Plan, covering all of our employees. In 2011, we matched 100% of our employee contributions up to 5% of their compensation in cash, which vests over five years of service measured from an employee’s hire date. Participants are immediately vested in their voluntary contributions.

Another component of the Plan is a profit sharing contribution. In 2007, we amended the Plan to provide for a Company discretionary contribution of at least 5% of eligible non-management employee compensation. These contributions vest 100% after three years of service measured from an employee’s hire date. Our total contributions expensed for the Plan in 2011, 2010 and 2009 were $61 million, $55 million and $48 million, respectively. Discretionary profit sharing amounts exceeding the minimum contribution described above may be paid to employees in cash.

Note 11—Commitments

In October 2011, we executed a new purchase agreement with Airbus S.A.S., which supersedes our original purchase agreement and related amendments. In this new agreement, we substituted 30 of our then remaining A320 aircraft deliveries with A321 aircraft and placed a new order for 40 A320 new engine option, or A320neo, aircraft with delivery scheduled in 2018 through 2021.

In December 2011, we executed a memorandum of understanding with Pratt and Whitney for the engines to be used on the 40 Airbus A320neo aircraft. In addition to the required engines for the firm aircraft order, we intend to purchase six spare engines.

During 2011, we cancelled the orders for a total of 14 EMBRAER 190 aircraft previously scheduled for delivery in 2013, 2014, 2017 and 2018. We also deferred seven EMBRAER 190 aircraft previously scheduled for delivery in 2013 and 2014 to 2018. Some or all of these deferred aircraft may either be returned to their previously committed to delivery dates or cancelled and subject to cancellation fees if we elect not to further amend our purchase agreement prior to July 31, 2012 to order a new EMBRAER 190 variant, if developed.

 

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As of December 31, 2011, our firm aircraft orders consisted of 21 Airbus A320 aircraft, 30 Airbus A321 aircraft, 40 Airbus A320neo, 35 EMBRAER 190 aircraft and 17 spare engines scheduled for delivery through 2021. Committed expenditures for these aircraft and related flight equipment, including estimated amounts for contractual price escalations and predelivery deposits, will be approximately $425 million in 2012, $450 million in 2013, $580 million in 2014, $775 million in 2015, $785 million in 2016 and $2.95 billion thereafter.

We have options to purchase 56 EMBRAER 190 aircraft for delivery from 2013 through 2018. We are scheduled to receive seven new Airbus A320 and four new EMBRAER 190 aircraft in 2012. We may purchase some or all of our 2012 Airbus A320 aircraft deliveries with cash and will only finance aircraft on favorable borrowing terms relative to our weighted average cost of debt. We are working on securing committed debt financing for the four EMBRAER 190 aircraft scheduled for delivery in 2012.

We utilize several credit card processors to process our ticket sales. Our agreements with these processors do not contain covenants, but do generally allow the processor to withhold cash reserves to protect the processor for potential liability for tickets purchased, but not yet used for travel. While we currently do not have any collateral requirements related to our credit card processors, we may be required to issue collateral to our credit card processors, or other key vendors, in the future. As of December 31, 2011, we had approximately $19 million pledged related to our workers compensation insurance policies and other business partner agreements, which will expire according to the terms of the related policies or agreements.

Our commitments also include those of LiveTV, which has several noncancelable long-term purchase agreements with its suppliers to provide equipment to be installed on its customers’ aircraft, including JetBlue’s aircraft. At December 31, 2011, committed expenditures to these suppliers were approximately $8 million in 2012, $1 million in 2013 and $1 million in 2014.

In March 2011, we executed a seven year agreement, subject to an optional three year extension, with ViaSat Inc. to develop and introduce in-flight broadband connectivity technology on our aircraft. Committed expenditures under this agreement include a minimum of $9 million through 2017 and an additional $22 million for minimum hardware and software purchases. Through LiveTV, we plan to partner with ViaSat to make this technology available to other airline customers in the future as well.

We enter into individual employment agreements with each of our FAA-licensed employees, which include pilots, dispatchers and technicians. Each employment agreement is for a term of five years and automatically renews for an additional five-year term unless either the employee or we elect not to renew it by giving at least 90 days notice before the end of the relevant term. Pursuant to these agreements, these employees can only be terminated for cause. In the event of a downturn in our business that would require a reduction in work hours, we are obligated to pay these employees a guaranteed level of income and to continue their benefits if they do not obtain other aviation employment. None of our employees are covered by collective bargaining agreements.

Note 12—Contingencies

The Company is party to legal proceedings and claims that arise during the ordinary course of business. We believe that the ultimate outcome of these matters will not have a material adverse effect upon our financial position, results of operations or cash flows.

We self-insure a portion of our losses from claims related to workers’ compensation, environmental issues, property damage, medical insurance for employees and general liability. Losses are accrued based on an estimate of the ultimate aggregate liability for claims incurred, using standard industry practices and our actual experience.

 

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We are a party to many routine contracts under which we indemnify third parties for various risks. These indemnities consist of the following:

All of our bank loans, including our aircraft and engine mortgages, contain standard provisions present in loans of this type which obligate us to reimburse the bank for any increased costs associated with continuing to hold the loan on our books which arise as a result of broadly defined regulatory changes, including changes in reserve requirements and bank capital requirements. These indemnities would have the practical effect of increasing the interest rate on our debt if they were to be triggered. In all cases, we have the right to repay the loan and avoid the increased costs. The term of these indemnities matches the length of the related loan up to 12 years.

Under both aircraft leases with foreign lessors and aircraft and engine mortgages with foreign lenders, we have agreed to customary indemnities concerning withholding tax law changes under which we are responsible, should withholding taxes be imposed, for paying such amount of additional rent or interest as is necessary to ensure that the lessor or lender still receives, after taxes, the rent stipulated in the lease or the interest stipulated under the loan. The term of these indemnities matches the length of the related lease up to 18 years.

We have various leases with respect to real property, and various agreements among airlines relating to fuel consortia or fuel farms at airports, under which we have agreed to standard language indemnifying the lessor against environmental liabilities associated with the real property or operations described under the agreement, even if we are not the party responsible for the initial event that caused the environmental damage. In the case of fuel consortia at airports, these indemnities are generally joint and several among the participating airlines. We have purchased a stand alone environmental liability insurance policy to help mitigate this exposure. Our existing aviation hull and liability policy includes some limited environmental coverage when a clean up is part of an associated single identifiable covered loss.

Under certain contracts, we indemnify specified parties against legal liability arising out of actions by other parties. The terms of these contracts range up to 30 years. Generally, we have liability insurance protecting ourselves for the obligations we have undertaken relative to these indemnities.

LiveTV provides product warranties to third party airlines to which it sells its products and services. We do not accrue a liability for product warranties upon sale of the hardware since revenue is recognized over the term of the related service agreements of up to 12 years. Expenses for warranty repairs are recognized as they occur. In addition, LiveTV has provided indemnities against any claims which may be brought against its customers related to allegations of patent, trademark, copyright or license infringement as a result of the use of the LiveTV system. LiveTV customers include other airlines, which may be susceptible to the inherent risks of operating in the airline industry and/or economic downturns, which may in turn have a negative impact on our business.

Under certain of our LiveTV third party agreements, as well as our aircraft operating lease agreements, we are required to restore certain property or equipment to its original form upon expiration of the related agreement. We have recorded the estimated fair value of these retirement obligations, which was not significant as of December 31, 2011, but may increase over time.

We are unable to estimate the potential amount of future payments under the foregoing indemnities and agreements.

Many aspects of airlines’ operations are subject to increasingly stringent federal, state, local, and foreign laws protecting the environment. There is growing consensus that some form of regulation will be forthcoming at the federal level with respect to greenhouse gas emissions (including carbon dioxide (CO2)) and such regulation could result in the creation of substantial additional costs in the form of taxes or emission allowances. Since the domestic airline industry is increasingly price sensitive, we may not be able to recover the cost of compliance with new or more stringent environmental laws and regulations from our passengers, which could adversely

 

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affect our business. Although it is not expected that the costs of complying with current environmental regulations will have a material adverse effect on our financial position, results of operations or cash flows, no assurance can be made that the costs of complying with environmental regulations in the future will not have such an effect. The impact to us and our industry from such actions is likely to be adverse and could be significant, particularly if regulators were to conclude that emissions from commercial aircraft cause significant harm to the upper atmosphere or have a greater impact on climate change than other industries.

In December 2009, the Department of Transportation, or DOT, issued a series of passenger protection rules which, among other things, impose tarmac delay limits for U.S. airline domestic flights. The rules became effective in April 2010, and require U.S. airlines to allow passengers to deplane within three hours on the tarmac, with certain safety and security exceptions. Violators can face fines up to a maximum of $27,500 per passenger. The new rules also introduce requirements to disclose on-time performance and delay statistics for certain flights. These new rules may have adverse consequences on our business and our results of operations.

In October 2011, a severe winter storm and multiple failures of critical navigational equipment in the New York City area severely impacted air travel in the northeast. As a result, we and other domestic and international carriers diverted flights to Hartford, CT’s Bradley International Airport, or Bradley. We diverted a total of six flights to Bradley, five of which were held on the tarmac for three hours or more. The DOT is investigating these incidents and we may be subject to a monetary penalty under the DOT’s tarmac delay regulations. Based on the allowable maximum DOT fine proscribed by the regulation, we could be assessed a fine of up to approximately $15 million. Since the tarmac delay rule went into effect in April 2010, there have been multiple instances where carriers have experienced extended tarmac delays in excess of three hours; however, the DOT has only assessed one penalty against another carrier, for an amount well below the maximum allowable fine of $27,500 per passenger. As a result of the circumstances surrounding the airport, weather and air traffic conditions on that day, as well as the discretion granted to the DOT by the regulation, we are unable to determine whether a fine will be assessed, and if so, the amount of such fine. We have issued compensation to the impacted customers in accordance with our Customer Bill of Rights, and are complying with the requests of the DOT investigation. We believe the final determination from the DOT should be made in the next few months.

Note 13—Financial Derivative Instruments and Risk Management

As part of our risk management strategy, we periodically purchase crude or heating oil option contracts to manage our exposure to the effect of changes in the price and availability of aircraft fuel. Prices for these commodities are normally highly correlated to aircraft fuel, making derivatives of them effective at providing short-term protection against sharp increases in average fuel prices. We also periodically enter into jet fuel swaps, as well as basis swaps for the differential between heating oil and jet fuel, to further limit the variability in fuel prices at various locations. To manage the variability of the cash flows associated with our variable rate debt, we have also entered into interest rate swaps. We do not hold or issue any derivative financial instruments for trading purposes.

Aircraft fuel derivatives:     We attempt to obtain cash flow hedge accounting treatment for each aircraft fuel derivative that we enter into. This treatment is provided for under the Derivatives and Hedging topic of the Codification, which allows for gains and losses on the effective portion of qualifying hedges to be deferred until the underlying planned jet fuel consumption occurs, rather than recognizing the gains and losses on these instruments into earnings during each period they are outstanding. The effective portion of realized aircraft fuel hedging derivative gains and losses is recognized in fuel expense in the period the underlying fuel is consumed.

Ineffectiveness results, in certain circumstances, when the change in the total fair value of the derivative instrument differs from the change in the value of our expected future cash outlays for the purchase of aircraft fuel and is recognized immediately in interest income and other. Likewise, if a hedge does not qualify for hedge accounting, the periodic changes in its fair value are recognized in the period of the change in interest income and other. When aircraft fuel is consumed and the related derivative contract settles, any gain or loss previously

 

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recorded in other comprehensive income is recognized in aircraft fuel expense. All cash flows related to our fuel hedging derivatives are classified as operating cash flows.

Our current approach to fuel hedging is to enter into hedges on a discretionary basis without a specific target of hedge percentage needs in order to mitigate potential liquidity issues and cap fuel prices, when possible.

The following table illustrates the approximate hedged percentages of our projected fuel usage by quarter as of December 31, 2011, related to our outstanding fuel hedging contracts that were designated as cash flow hedges for accounting purposes.

 

 

     Heating oil
collars
    Jet fuel
collars
    Jet fuel swap
agreements
    Total  

First Quarter 2012

     7     2     26     35

Second Quarter 2012

     7     6     7     20

Third Quarter 2012

     6     3     6     15

Fourth Quarter 2012

     7     1     7     15

During 2011, we also entered into basis swaps and certain 3-way crude collar agreements, which we did not designate as cash flow hedges for accounting purposes and as a result we marked to market in earnings each period outstanding based on their current fair value.

As of December 31, 2011, we determined that the correlation between crude oil and jet fuel had significantly deteriorated and the requirements for continuing hedge accounting treatment were no longer satisfied. As such, we prospectively discontinued hedge accounting treatment on all of our crude oil cap agreements and crude oil collars outstanding as of December 31, 2011, which represent approximately 6% of our total 2012 forecasted fuel consumption. The forecasted fuel consumption, for which these transactions were designated as cash flow hedges, is still expected to occur; therefore, the $3 million in losses deferred in accumulated other comprehensive income related to these contracts will remain deferred until the forecasted fuel consumption occurs. Any incremental increase or decrease in the value of these contracts will be recognized in other income (expense) in each period during 2012 until the contracts settle.

Interest rate swaps:     The interest rate swap agreements we had outstanding as of December 31, 2011 effectively swap floating rate debt for fixed rate debt, taking advantage of lower borrowing rates in existence at the time of the hedge transaction as compared to the date our original debt instruments were executed. As of December 31, 2011, we had $363 million in notional debt outstanding related to these swaps, which cover certain interest payments through August 2016. The notional amount decreases over time to match scheduled repayments of the related debt. Refer to Note 2 for information on the debt outstanding related to these swap agreements.

All of our outstanding interest rate swap contracts qualify as cash flow hedges in accordance with the Derivatives and Hedging topic of the Codification. Since all of the critical terms of our swap agreements match the debt to which they pertain, there was no ineffectiveness relating to these interest rate swaps in 2011, 2010 or 2009, and all related unrealized losses were deferred in accumulated other comprehensive income. We recognized approximately $10 million, $8 million and $5 million in additional interest expense as the related interest payments were made during 2011, 2010 and 2009, respectively.

Any outstanding derivative instruments expose us to credit loss in the event of nonperformance by the counterparties to the agreements, but we do not expect that any of our seven counterparties will fail to meet their obligations. The amount of such credit exposure is generally the positive fair value of our outstanding contracts. To manage credit risks, we select counterparties based on credit assessments, limit our overall exposure to any single counterparty and monitor the market position of each counterparty. Some of our agreements require cash deposits if market risk exposure exceeds a specified threshold amount.

 

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The financial derivative instrument agreements we have with our counterparties may require us to fund all, or a portion of, outstanding loss positions related to these contracts prior to their scheduled maturities. The amount of collateral posted, if any, is periodically adjusted based on the fair value of the hedge contracts. Our policy is to offset the liabilities represented by these contracts with any cash collateral paid to the counterparties. We did not have any collateral posted related to our outstanding fuel hedge contracts at December 31, 2011 or December 31, 2010. We had $20 million and $30 million posted in collateral related to our interest rate derivatives which offset the hedge liability in other current liabilities at December 31, 2011 and 2010, respectively.

The table below reflects quantitative information related to our derivative instruments and where these amounts are recorded in our financial statements. All of our outstanding contracts at December 31, 2011 were designated as cash flow hedges (dollar amounts in millions).

 

 

     As of December 31,  
     2011     2010  

Fuel derivatives

    

Asset fair value recorded in prepaid expenses and other (1)

   $ 6      $ 19   

Asset fair value recorded in other long term assets (1)

            4   

Liability fair value recorded in other accrued liabilities (1)

     10          

Longest remaining term (months)

     12        24   

Hedged volume (barrels, in thousands)

     3,540        4,290   

Estimated amount of existing gains (losses) expected to be reclassified into earnings in the next 12 months

     (6     3   

Interest rate derivatives

    

Liability fair value recorded in other long term liabilities (2)

     20        23   

Estimated amount of existing gains (losses) expected to be reclassified into earnings in the next 12 months

     (10     (10

 

     2011      2010     2009  

Fuel derivatives

       

Hedge effectiveness gains (losses) recognized in aircraft fuel expense

   $ 3       $ (3   $ (120

Hedge ineffectiveness gains (losses) recognized in other income (expense)

     (2      (2     1   

Gains (losses) of derivatives not qualifying for hedge accounting recognized in other income (expense)

                    (1

Hedge gains (losses) of derivatives recognized in comprehensive income, (see Note 15)

     (11      (11     17   

Percentage of actual consumption economically hedged

     40      51     23

Interest rate derivatives

       

Hedge gains (losses) of derivatives recognized in comprehensive income, (see Note 15)

     (7      (21     (5

Hedge gains (losses) of derivatives recognized in interest expense

     (10      (8     (5

 

(1) Gross asset or liability of each contract prior to consideration of offsetting positions with each counterparty

 

(2) Gross liability, prior to impact of collateral posted

 

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Note 14—Fair Value

Under the Fair Value Measurements and Disclosures topic of the Codification, disclosures are required about how fair value is determined for assets and liabilities and a hierarchy for which these assets and liabilities must be grouped is established, based on significant levels of inputs as follows:

 

Level 1      quoted prices in active markets for identical assets or liabilities;
Level 2      quoted prices in active markets for similar assets and liabilities and inputs that are observable for the asset or liability; or
Level 3      unobservable inputs for the asset or liability, such as discounted cash flow models or valuations.

The determination of where assets and liabilities fall within this hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The following is a listing of our assets and liabilities required to be measured at fair value on a recurring basis and where they are classified within the fair value hierarchy (as described in Note 1) (in millions). Refer to Note 2 for fair value information related to our outstanding debt obligations as of December 31, 2011 and 2010.

 

 

     As of December 31, 2011  
     Level 1      Level 2      Level 3      Total  

Assets

           

Cash and cash equivalents

   $ 555       $       $       $ 555   

Restricted cash

     4                         4   

Available-for-sale investment securities

             253                 253   

Aircraft fuel derivatives

             5                 5   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ 559       $ 258       $       $ 817   
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Aircraft fuel derivatives

   $       $ 9       $       $ 9   

Interest rate swap

                     20         20   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $       $ 9       $ 20       $ 29   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

     As of December 31, 2010  
     Level 1      Level 2      Level 3      Total  

Assets

           

Cash and cash equivalents

   $ 399       $       $       $ 399   

Restricted cash

     59                         59   

Available-for-sale investment securities

     10         144                 154   

Aircraft fuel derivatives

             23                 23   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ 468       $ 167       $       $ 635   
  

 

 

    

 

 

    

 

 

    

 

 

 

Liabilities

           

Interest rate swap

   $       $       $ 23       $ 23   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $       $       $ 23       $ 23   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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The following table reflects the activity for the major classes of our assets and liabilities measured at fair value on a recurring basis using level 3 inputs (in millions) for the twelve months ended December 31, 2011, 2010 and 2009:

 

 

     Auction Rate
Securities
    Put Option
related to ARS
    Interest Rate
Swaps
    Total  

Balance as of December 31, 2008

   $ 244      $ 14      $ (10   $ 248   

Total gains or (losses), realized or unrealized

        

Included in earnings

     4        (3            1   

Included in comprehensive income

                   5        5   

Purchases, issuances and settlements, net

     (174            (5     (179
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2009

   $ 74      $ 11      $ (10   $ 75   

Total gains or (losses), realized or unrealized

        

Included in earnings

     11        (11              

Included in comprehensive income

                   (21     (21

Purchases, issuances and settlements, net

     (85            8        (77
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2010

   $      $      $ (23   $ (23

Total gains or (losses), realized or unrealized

        

Included in earnings

                            

Included in comprehensive income

                   (7     (7

Settlements

                   10        10   
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2011

   $      $      $ (20   $ (20
  

 

 

   

 

 

   

 

 

   

 

 

 

Cash and Cash Equivalents:     Our cash and cash equivalents include money market securities and commercial paper which are readily convertible into cash with maturities of three months or less when purchased, all of which are considered to be highly liquid and easily tradable. These securities are valued using inputs observable in active markets for identical securities and are therefore classified as level 1 within our fair value hierarchy.

We maintain cash and cash equivalents with various high quality financial institutions or in short-term duration high quality debt securities. Investments in highly liquid debt securities are stated at fair value. The majority of our receivables result from the sale of tickets to individuals, mostly through the use of major credit cards. These receivables are short-term, generally being settled shortly after the sale. The carrying values of all other financial instruments approximated their fair values at December 31, 2011 and 2010.

Available-for-sale investment securities:     Included in our available-for-sale investment securities are certificates of deposits and commercial paper with original maturities greater than 90 days but less than one year. The fair values of these instruments are based on observable inputs in non-active markets, which are therefore classified as Level 2 in the hierarchy. At December 31, 2010, we held asset backed securities, which are considered variable rate demand notes with contractual maturities generally greater than ten years with interest reset dates often every 30 days or less. The fair values of these investments are based on observable market data in actively traded markets, and are therefore classified as Level 1 in the hierarchy. We did not record any significant gains or losses on these securities during the twelve months ended December 31, 2011 or 2010.

Auction rate securities:     Auction rate securities, or ARS, are long-term debt securities for which interest rates reset regularly at pre-determined intervals, typically 28 days, through an auction process. Our classification as trading securities was based on our intent to trade the securities when market opportunities arose in order to increase our liquid investments due to then current economic uncertainty. The estimated fair value of these securities beginning in 2008 no longer approximated par value and was estimated through discounted cash flows, a level 3 input. Our discounted cash flow analysis considered, among other things, the quality of the underlying

 

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collateral, the credit rating of the issuers, an estimate of when these securities are either expected to have a successful auction or otherwise return to par value, the expected interest income to be received over this period, and the estimated required rate of return for investors. Because of the inherent subjectivity in valuing these securities, we also considered independent valuations obtained for each of our ARS in estimating their fair values as of December 31, 2009.

During 2009, we sold certain ARS for $54 million, an amount which approximated their fair value at that time. In October 2009, we entered into an agreement with Citigroup Global Markets, Inc., under which they agreed to purchase $158 million par value of the remaining ARS we held which were brokered by them. The $120 million in cash proceeds from these sales did not result in significant gains or losses. In conjunction with this transaction, we terminated the line of credit we had with Citigroup.

During 2008, following investigations by various regulatory agencies of the banks and broker-dealers that sold ARS, UBS, one of the two broker-dealers from which we purchased ARS, subsequently reached a settlement. As a result of our participation in this settlement agreement, UBS was required to repurchase from us at par ARS brokered by them, which had a par value of $85 million at December 31, 2009. In July 2010, all of our then outstanding ARS were repurchased at par by UBS in accordance with this settlement agreement. The proceeds were used to terminate the outstanding balance on the line of credit with UBS. As a result, we no longer hold any trading securities as of December 31, 2011.

Put option related to ARS :      We had elected to apply the fair value option under the Financial Instruments topic of the Codification, to UBS’s agreement to repurchase, at par, ARS brokered by them as described above. We did so in order to closely conform to our treatment of the underlying ARS. The resultant loss of $3 million recognized in 2009 offset the related ARS holding gains or losses included in other income (expense). The fair value of the put option was determined by comparing the fair value of the related ARS, as described above, to their par values and also considered the credit risk associated with UBS. The fair value of the put option was based on unobservable inputs and was therefore classified as level 3 in the hierarchy. The put option was terminated concurrent with the sale of the underlying investments in July 2010.

Interest rate swaps:     The fair values of our interest rate swaps are based on inputs received from the counterparty. These values were corroborated by adjusting the active swap indications in quoted markets for similar terms (6-8 years) for the specific terms within our swap agreements. Since some of these inputs were not observable, they are classified as level 3 inputs in the hierarchy.

Aircraft fuel derivatives:     Our jet fuel swaps, jet fuel, heating oil and crude oil collars, and crude oil caps are not traded on public exchanges. Their fair values are determined using a market approach based on inputs that are readily available from public markets for commodities and energy trading activities; therefore, they are classified as level 2 inputs. The data inputs are combined into quantitative models and processes to generate forward curves and volatilities related to the specific terms of the underlying hedge contracts.

Spectrum license :      In 2006, LiveTV acquired an air-to-ground spectrum license in a public auction from the Federal Communications Commission for approximately $7 million. Since its acquisition, the license has been treated as an indefinite lived intangible asset, reflected in other long term assets in our consolidated balance sheets. In late 2007, we unveiled BetaBlue, an Airbus A320 aircraft, which utilized the acquired spectrum in delivering email and internet capabilities to our customers. Since 2007, LiveTV continued to develop this technology, with the intent of making it available on all of our aircraft. However, with the introduction of similar service by competitors, we re-evaluated the long term viability of our planned offering and during 2010, ceased further development of the air-to-ground platform. In September 2010, we announced plans to develop broadband capability, partnering withViaSat and utilizing their advanced satellite technologies. As a result of the change in plans, we evaluated the spectrum license for impairment, which resulted in a loss of approximately $5 million being recorded in other operating expenses during 2010. We determined the $2 million fair value of the spectrum license at December 31, 2010 using a probability weighted cash flow model, which included an income

 

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approach for the cash flows associated with the current general aviation business as well as a market approach based on an independent valuation. Since these inputs are not observable, they are classified as level 3 inputs in the hierarchy. As of December 31, 2011, we determined there was no further impairment.

Note 15—Comprehensive Income (Loss)

Comprehensive income (loss) includes changes in fair value of our aircraft fuel derivatives and interest rate swap agreements, which qualify for hedge accounting. The differences between net income (loss) and comprehensive income (loss) for the years ended December 31, are as follows (in millions):

 

 

     2011     2010     2009  

Net income

   $ 86      $ 97      $ 61   

Gain (loss) on derivative instruments (net of $4, $7 and $54 of taxes)

     (5     (11     85   
  

 

 

   

 

 

   

 

 

 

Total other comprehensive income (loss)

     (5     (11     85   
  

 

 

   

 

 

   

 

 

 

Comprehensive income

   $ 81      $ 86      $ 146   
  

 

 

   

 

 

   

 

 

 

A rollforward of the amounts included in accumulated other comprehensive income (loss), net of taxes for the years ended December 31, 2009, 2010, and 2011 is as follows (in millions):

 

 

     Aircraft Fuel
Derivatives
    Interest
Rate Swaps
    Total  

Beginning accumulated gains (losses), at December 31, 2008

   $ (77   $ (7   $ (84

Reclassifications into earnings

     72        3        75   

Change in fair value

     12        (2     10   
  

 

 

   

 

 

   

 

 

 

Balance of accumulated gains (losses), at December 31, 2009

     7        (6     1   

Reclassifications into earnings

     3        5        8   

Change in fair value

     (6     (13     (19
  

 

 

   

 

 

   

 

 

 

Balance of accumulated gains (losses), at December 31, 2010

     4        (14     (10

Reclassifications into earnings

     (1     6        5   

Change in fair value

     (6     (4     (10
  

 

 

   

 

 

   

 

 

 

Ending accumulated gains (losses), at December 31, 2011

   $ (3   $ (12   $ (15
  

 

 

   

 

 

   

 

 

 

Note 16—Geographic Information

Under the Segment Reporting topic of the Codification, disclosures are required for operating segments, which are regularly reviewed by the chief operating decision makers. Air transportation services accounted for substantially all the Company’s operations in 2011, 2010 and 2009.

Operating revenues are allocated to geographic regions, as defined by the DOT, based upon the origination and destination of each flight segment. We currently serve 20 locations in the Caribbean and Latin American region, or Latin America as defined by the DOT. However, our management also includes Puerto Rico when reviewing the Caribbean region, and as such we have included our three destinations in Puerto Rico in our Caribbean allocation of revenues. Operating revenues by geographic regions for the years ended December 31 are summarized below (in millions):

 

 

     2011      2010      2009  

Domestic

   $ 3,351       $ 2,900       $ 2,596   

Caribbean

     1,153         879         696   
  

 

 

    

 

 

    

 

 

 

Total

   $ 4,504       $ 3,779       $ 3,292   
  

 

 

    

 

 

    

 

 

 

 

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Our tangible assets primarily consist of our fleet of aircraft, which is deployed system wide, with no individual aircraft dedicated to any specific route or region; therefore our assets do not require any allocation to a geographic area.

Note 17—Quarterly Financial Data (Unaudited)

Quarterly results of operations for the years ended December 31 are summarized below (in millions, except per share amounts):

 

 

     First
Quarter
    Second
Quarter
     Third
Quarter
     Fourth
Quarter
 

2011 (1)

          

Operating revenues

   $ 1,012      $ 1,151       $ 1,195       $ 1,146   

Operating income

     45        86         108         83   

Net income

     3        25         35         23   

Basic earnings per share

   $ 0.01      $ 0.09       $ 0.12       $ 0.08   

Diluted earnings per share

   $ 0.01      $ 0.08       $ 0.11       $ 0.08   

2010 (2)

          

Operating revenues

   $ 871      $ 940       $ 1,030       $ 938   

Operating income

     43        95         140         55   

Net income (loss)

     (1     31         59         8   

Basic earnings (loss) per share

   $ —        $ 0.11       $ 0.21       $ 0.03   

Diluted earnings (loss) per share

   $ —        $ 0.10       $ 0.18       $ 0.03   

 

(1) During the first quarter of 2011, we recorded $9 million of revenue related to our co-branded credit card agreement guarantee. During the third and fourth quarters of 2011, we recorded a $5 million loss and $1 million loss, respectively, on the early extinguishment of a portion of our 6.75% Series A convertible debentures

 

(2) During the first quarter of 2010, we recorded approximately $16 million in implementation expenses related to our new customer service system implemented in January 2010. During the first quarter of 2010, we recorded $4 million of revenue related to our co-branded credit card agreement guarantee. During the third quarter of 2010, we recorded a $6 million impairment loss related to a Spectrum license held by LiveTV.

The sum of the quarterly earnings per share amounts does not equal the annual amount reported since per share amounts are computed independently for each quarter and for the full year based on respective weighted-average common shares outstanding and other dilutive potential common shares.

 

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Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of

JetBlue Airways Corporation

We have audited the accompanying consolidated balance sheets of JetBlue Airways Corporation as of December 31, 2011 and 2010, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2011. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of JetBlue Airways Corporation at December 31, 2011 and 2010, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2011, in conformity with U.S. generally accepted accounting principles.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), JetBlue Airways Corporation’s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 28, 2012 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP

New York, New York

February 28, 2012

 

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Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of

JetBlue Airways Corporation

We have audited JetBlue Airways Corporation’s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). JetBlue Airways Corporation’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, JetBlue Airways Corporation maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of JetBlue Airways Corporation as of December 31, 2011 and 2010 and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2011 of JetBlue Airways Corporation and our report dated February 28, 2012 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP

New York, New York

February 28, 2012

 

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ITEM 9. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

 

ITEM 9A. CONTROLS AND PROCEDURES

Disclosure Controls and Procedures

We maintain disclosure controls and procedures (as defined in Rule 13a-15(e) or Rule 15d-15(e) under the Exchange Act) that are designed to ensure that information required to be disclosed by us in reports that we file under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information required to be disclosed by us in reports that we file under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer, or CEO, and our Chief Financial Officer, or CFO, to allow timely decisions regarding required disclosure. Management, with the participation of our CEO and CFO, performed an evaluation of the effectiveness of our disclosure controls and procedures as of December 31, 2011. Based on that evaluation, our CEO and CFO concluded that our disclosure controls and procedures were effective as of December 31, 2011.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) or Rule 15d-15(f) under the Exchange Act). Under the supervision and with the participation of our management, including our CEO and CFO, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on that evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2011 to provide reasonable assurance regarding the reliabilityof financial reporting and the preparation of consolidated financial statements for external reporting purposes in accordance with U.S. GAAP.

Ernst & Young LLP, the independent registered public accounting firm that audited our Consolidated Financial Statements included in this Annual Report on Form 10-K, audited the effectiveness of our internal control over financial reporting as of December 31, 2011. Ernst & Young LLP has issued their report which is included elsewhere herein.

Changes in Internal Control Over Financial Reporting

During the quarter ended December 31, 2011, there were no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) or Rule 15d-15(f) under the Exchange Act) identified in connection with the evaluation of our controls performed during that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

ITEM 9B. OTHER INFORMATION

None.

 

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PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

Code of Ethics

We adopted a Code of Ethics within the meaning of Item 406(b) of SEC Regulation S-K. This Code of Ethics applies to our principal executive officer, principal financial officer and principal accounting officer. This Code of Ethics is publicly available on our website at investor.jetblue.com . If we make substantive amendments to this Code of Ethics or grant any waiver, including any implicit waiver, we will disclose the nature of such amendment or waiver on our website or in a report on Form 8-K within four days of such amendment or waiver.

Information relating to executive officers is set forth in Part I of this report following Item 4 under “Executive Officers of the Registrant”. The other information required by this Item will be included in and is incorporated herein by reference from our definitive proxy statement for our 2012 Annual Meeting of Stockholders to be held on May 10, 2012 to be filed with the SEC pursuant to Regulation 14A within 120 days after the end of our 2011 fiscal year, or our Proxy Statement.

 

ITEM 11. EXECUTIVE COMPENSATION

The information required by this Item will be included in and is incorporated herein by reference from our Proxy Statement.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Equity Compensation Plan Information

The table below provides information relating to our equity compensation plans (including individual compensation arrangements) under which our common stock is authorized for issuance as of December 31, 2011, as adjusted for stock splits:

 

Plan Category

   Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
     Weighted-average
exercise price of
outstanding
options, warrants
and rights
     Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in first
column)
 

Equity compensation plans approved by security holders

     26,189,819       $ 12.53         92,646,558   

Equity compensation plans not approved by security holders

                       
  

 

 

    

 

 

    

 

 

 

Total

     26,189,819       $ 12.53         92,646,558   
  

 

 

    

 

 

    

 

 

 

See Note 7 to our consolidated financial statements for further information regarding the material features of the above plans.

The other information required by this Item will be included in and is incorporated herein by reference from our Proxy Statement.

 

ITEM 13.    CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

The information required by this Item will be included in and is incorporated herein by reference from our Proxy Statement.

 

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ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES

The information required by this Item will be included in and is incorporated herein by reference from our Proxy statement.

 

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PART IV

 

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

1.    Financial statements:   
   Consolidated Balance Sheets — December 31, 2011 and December 31, 2010   
   Consolidated Statements of Operations — For the years ended December 31, 2011, 2010 and 2009   
   Consolidated Statements of Cash Flows — For the years ended December 31, 2011, 2010 and 2009   
   Consolidated Statements of Stockholders’ Equity — For the years ended December 31, 2011, 2010 and 2009   
   Notes to Consolidated Financial Statements   
   Reports of Independent Registered Public Accounting Firm   
2.    Financial Statement Schedule:   
   Report of Independent Registered Public Accounting Firm on Financial Statement Schedule    S-1
   Schedule II — Valuation of Qualifying Accounts and Reserves    S-2
   All other schedules have been omitted because they are inapplicable, not required, or the information is included elsewhere in the consolidated financial statements or notes thereto.   
3.    Exhibits: See accompanying Exhibit Index included after the signature page of this report for a list of the exhibits filed or furnished with or incorporated by reference in this report.   

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    JETBLUE AIRWAYS CORPORATION
    (Registrant)
Date: February 28, 2012     By:   /s/     DONALD DANIELS
        Vice President, Controller, and Chief Accounting Officer (Principal Accounting Officer)

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James G. Hnat his or her attorney-in-fact with power of substitution for him or her in any and all capacities, to sign any amendments, supplements or other documents relating to this Annual Report on Form 10-K which he or she deems necessary or appropriate, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that such attorney-in-fact or their substitute may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

  

Capacity

 

Date

/ S /    DAVID BARGER        

David Barger

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

  February 28, 2012

/ S /    MARK D. POWERS        

Mark D. Powers

  

Chief Financial Officer (Principal Financial Officer)

  February 28, 2012

/ S /    JENS BISCHOF        

Jens Bischof

  

Director

  February 28, 2012

/ S /    PETER BONEPARTH        

Peter Boneparth

  

Director

  February 28, 2012

/ S /    DAVID CHECKETTS        

David Checketts

  

Director

  February 28, 2012

/ S /    VIRGINIA GAMBALE        

Virginia Gambale

  

Director

  February 28, 2012

/ S /    STEPHAN GEMKOW        

Stephan Gemkow

  

Director

  February 28, 2012

/ S /    ELLEN JEWETT        

Ellen Jewett

  

Director

  February 28, 2012

/ S /    STANLEY MCCHRYSTAL        

Stanley McChrystal

  

Director

  February 28, 2012

 

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Signature

  

Capacity

 

Date

/ S /    JOEL PETERSON        

Joel Peterson

  

Director

  February 28, 2012

/ S /    ANN RHOADES        

Ann Rhoades

  

Director

  February 28, 2012

/ S /    FRANK SICA        

Frank Sica

  

Director

  February 28, 2012

 

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Exhibit Index

 

2.1    Membership Interest Purchase Agreement among Harris Corporation and Thales Avionics In-Flight Systems, LLC and In-Flight Liquidating, LLC and Glenn S. Latta and Jeffrey A. Frisco and Andreas de Greef and JetBlue Airways Corporation, dated as of September 9, 2002 relating to the interests in LiveTV, LLC—incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K dated September 27, 2002.
3.2(a)    Amended and Restated Certificate of Incorporation of JetBlue Airways Corporation—incorporated by reference to Exhibit 3.5 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2008.
3.2(b)    Certificate of Amendment of Certificate of Incorporation, dated May 20, 2010—incorporated by reference to Exhibit 3.2(b) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2010.
3.3(e)    Fifth Amended and Restated Bylaws of JetBlue Airways Corporation—incorporated by reference to Exhibit 3.6 of our Quarterly Report on Form 10-Q for the quarter ended June 30, 2008.
3.3(f)    Fifth Amended and Restated Bylaws of JetBlue Airways Corporation (consolidated amendments as of November 12, 2009)—incorporated by reference to Exhibit 3.3(f) to our Annual Report on Form 10-K for the year ended December 31, 2009.
3.3(g)    Amended Consolidated Fifth Amended and Restated Bylaws of JetBlue Airways Corporation)—incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K dated April 11, 2011.
3.4    Certificate of Designation of Series A Participating Preferred Stock dated April 1, 2002—incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K dated July 10, 2003.
4.1    Specimen Stock Certificate—incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
4.2    Amended and Restated Registration Rights Agreement, dated as of August 10, 2000, by and among JetBlue Airways Corporation and the Stockholders named therein—incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
4.2(a)    Amendment No. 1, dated as of June 30, 2003, to Amended and Restated Registration Rights Agreement, dated as of August 10, 2000, by and among JetBlue Airways Corporation and the Stockholders named therein—incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-3, filed on July 3, 2003, as amended on July 10, 2003 (File No. 333-106781).
4.2(b)    Amendment No. 2, dated as of October 6, 2003, to Amended and Restated Registration Rights Agreement, dated as of August 10, 2000, by and among JetBlue Airways Corporation and the Stockholders named therein—incorporated by reference to Exhibit 4.9 to the Registration Statement on Form S-3, filed on October 7, 2003 (File No. 333-109546).
4.2(c)    Amendment No. 3, dated as of October 4, 2004, to Amended and Restated Registration Rights Agreement, dated as of August 10, 2000, by and among JetBlue Airways Corporation and the Stockholders named therein—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K/A dated October 4, 2004.
4.2(d)    Amendment No. 4, dated as of June 22, 2006, to Amended and Restated Registration Rights Agreement, dated as of August 10, 2000, by and among JetBlue Airways Corporation and the Stockholders named therein—incorporated by reference to Exhibit 4.19 to our Registration Statement on Form S-3 ARS, filed on June 30, 2006 (File No. 333-135545).

 

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4.3    Registration Rights Agreement, dated as of July 15, 2003, among the Company and Morgan Stanley & Co. Incorporated, Raymond James & Associates, Inc. and Blaylock & Partners, L.P.—incorporated by reference to Exhibit 4.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2003.
4.4    Summary of Rights to Purchase Series A Participating Preferred Stock—incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
4.5    Stockholder Rights Agreement—incorporated by reference to Exhibit 4.3 to our Annual Report on Form 10-K for the year ended December 31, 2002.
4.5(a)    Amendment to the Stockholder Rights Agreement, dated as of January 17, 2008, by and between JetBlue Airways Corporation and Computershare Trust Company, N.A.—incorporated by reference to Exhibit 4.5(a) to our Current Report on Form 8-K dated January 23, 2008.
4.7    Form of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Certificate Series 2004-1G-1-O—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated March 24, 2004.
4.7(a)    Form of Three-Month LIBOR plus 0.420% JetBlue Airways Pass Through Certificate Series 2004-1G-2-O—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated March 24, 2004.
4.7(b)    Form of Three-Month LIBOR plus 4.250% JetBlue Airways Pass Through Certificate Series 2004-1C-O—incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K dated March 24, 2004.
4.7(c)    Pass Through Trust Agreement, dated as of March 24, 2004, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways Pass Through Trust, Series 2004-1G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-1G-1-O, Pass Through Certificates—incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K dated March 24, 2004(1).
4.7(d)    Revolving Credit Agreement (2004-1G-1), dated as of March 24, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-1G-1 Pass Through Trust, as Borrower, and Landesbank Hessen-Thüringen Girozentrale, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.5 to our Current Report on Form 8-K dated March 24, 2004.
4.7(e)    Revolving Credit Agreement (2004-1G-2), dated as of March 24, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-1G-2 Pass Through Trust, as Borrower, and Landesbank Hessen-Thüringen Girozentrale, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated March 24, 2004.
4.7(f)    Revolving Credit Agreement (2004-1C), dated as of March 24, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-1C Pass Through Trust, as Borrower, and Landesbank Hessen-Thüringen Girozentrale, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated March 24, 2004.
4.7(g)    Deposit Agreement (Class G-1), dated as of March 24, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.8 to our Current Report on Form 8-K dated March 24, 2004.

 

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4.7(h)    Deposit Agreement (Class G-2), dated as of March 24, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.9 to our Current Report on Form 8-K dated March 24, 2004.
4.7(i)    Deposit Agreement (Class C), dated as of March 24, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.10 to our Current Report on Form 8-K dated March 24, 2004.
4.7(j)    Escrow and Paying Agent Agreement (Class G-1), dated as of March 24, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Credit Lyonnais Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-1G-1-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated March 24, 2004.
4.7(k)    Escrow and Paying Agent Agreement (Class G-2), dated as of March 24, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Credit Lyonnais Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-1G-2-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated March 24, 2004.
4.7(l)    Escrow and Paying Agent Agreement (Class C), dated as of March 24, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and Credit Lyonnais Securities (USA) Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-1C-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.13 to our Current Report on Form 8-K dated March 24, 2004.
4.7(m)    ISDA Master Agreement, dated as of March 24, 2004, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-1G-1-O—incorporated by reference to Exhibit 4.14 to our Current Report on Form 8-K dated March 24, 2004(2).
4.7(n)    Schedule to the ISDA Master Agreement, dated as of March 24, 2004, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-1G-1-O—incorporated by reference to Exhibit 4.15 to our Current Report on Form 8-K dated March 24, 2004.
4.7(o)    Schedule to the ISDA Master Agreement, dated as of March 24, 2004, between Morgan Stanley Capital Services, Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-1G-2-O—incorporated by reference to Exhibit 4.16 to our Current Report on Form 8-K dated March 24, 2004.

 

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4.7(p)    Schedule to the ISDA Master Agreement, dated as of March 24, 2004, between Morgan Stanley Capital Services, Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-1C-O—incorporated by reference to Exhibit 4.17 to our Current Report on Form 8-K dated March 24, 2004.
4.7(q)    Class G-1 Above Cap Liquidity Facility Confirmation, dated March 24, 2004, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.18 to our Current Report on Form 8-K dated March 24, 2004.
4.7(r)    Class G-2 Above Cap Liquidity Facility Confirmation, dated March 24, 2004, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.19 to our Current Report on Form 8-K dated March 24, 2004.
4.7(s)    Class C Above Cap Liquidity Facility Confirmation, dated March 24, 2004, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.20 to our Current Report on Form 8-K dated March 24, 2004.
4.7(t)    Guarantee, dated March 24, 2004, of Morgan Stanley Capital Services Inc. with respect to the Class G-1 Above Cap Liquidity Facility—incorporated by reference to Exhibit 4.21 to our Current Report on Form 8-K dated March 24, 2004.
4.7(u)    Guarantee, dated March 24, 2004, of Morgan Stanley Capital Services Inc. with respect to the Class G-2 Above Cap Liquidity Facility—incorporated by reference to Exhibit 4.22 to our Current Report on Form 8-K dated March 24, 2004.
4.7(v)    Guarantee, dated March 24, 2004, of Morgan Stanley Capital Services Inc. with respect to the Class C Above Cap Liquidity Facility—incorporated by reference to Exhibit 4.23 to our Current Report on Form 8-K dated March 24, 2004.
4.7(w)    Insurance and Indemnity Agreement, dated as of March 24, 2004, among MBIA Insurance Corporation, as Policy Provider, JetBlue Airways Corporation and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.24 to our Current Report on Form 8-K dated March 24, 2004.
4.7(x)    MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated March 24, 2004, bearing Policy Number 43567(1) issued to Wilmington Trust Company, as Subordination Agent for the Class G-1 Certificates—incorporated by reference to Exhibit 4.25 to our Current Report on Form 8-K dated March 24, 2004.
4.7(y)    MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated March 24, 2004, bearing Policy Number 43567(2) issued to Wilmington Trust Company, as Subordination Agent for the Class G-2 Certificates—incorporated by reference to Exhibit 4.26 to our Current Report on Form 8-K dated March 24, 2004.
4.7(z)    Intercreditor Agreement, dated as of March 24, 2004, among Wilmington Trust Company, as Pass Through Trustee, Landesbank Hessen- Thüringen Girozentrale, as Primary Liquidity Provider, Morgan Stanley Capital Services, Inc., as Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.27 to our Current Report on Form 8-K dated March 24, 2004.

 

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4.7(aa)    Note Purchase Agreement, dated as of March 24, 2004, among JetBlue Airways Corporation, Wilmington Trust Company, in its separate capacities as Pass Through Trustee, as Subordination Agent, as Escrow Agent and as Paying Agent—incorporated by reference to Exhibit 4.28 to our Current Report on Form 8-K dated March 24, 2004.
4.7(ab)    Form of Trust Indenture and Mortgage between JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, as Mortgagee—incorporated by reference to Exhibit 4.29 to our Current Report on Form 8-K dated March 24, 2004.
4.7(ac)    Form of Participation Agreement among JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, in its separate capacities as Mortgagee, as Pass Through Trustee and as Subordination Agent—incorporated by reference to Exhibit 4.30 to our Current Report on Form 8-K dated March 24, 2004.
4.8    Form of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Certificate Series 2004-2G-1-O, with attached form of Escrow Receipt—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated November 9, 2004.
4.8(a)    Form of Three-Month LIBOR plus 0.450% JetBlue Airways Pass Through Certificate Series 2004-2G-2-O, with attached form of Escrow Receipt—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated November 9, 2004.
4.8(b)    Form of Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through Certificate Series 2004-2C-O, with attached form of Escrow Receipt—incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K dated November 9, 2004.
4.8(c)    Pass Through Trust Agreement, dated as of November 15, 2004, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-2G-1-O, Pass Through Certificates—incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K dated November 9, 2004(3).
4.8(d)    Revolving Credit Agreement (2004-2G-1), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-1 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.5 to our Current Report on Form 8-K dated November 9, 2004.
4.8(e)    Revolving Credit Agreement (2004-2G-2), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2G-2 Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated November 9, 2004.
4.8(f)    Revolving Credit Agreement (2004-2C), dated as of November 15, 2004, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways 2004-2C Pass Through Trust, as Borrower, and Landesbank Baden-Württemberg, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated November 9, 2004.
4.8(g)    Deposit Agreement (Class G-1), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.8 to our Current Report on Form 8-K dated November 9, 2004.

 

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4.8(h)    Deposit Agreement (Class G-2), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.9 to our Current Report on Form 8-K dated November 9, 2004.
4.8(i)    Deposit Agreement (Class C), dated as of November 15, 2004, between Wilmington Trust Company, as Escrow Agent, and HSH Nordbank AG, New York Branch, as Depositary—incorporated by reference to Exhibit 4.10 to our Current Report on Form 8-K dated November 9, 2004.
4.8(j)    Escrow and Paying Agent Agreement (Class G-1), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated November 9, 2004.
4.8(k)    Escrow and Paying Agent Agreement (Class G-2), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated November 9, 2004.
4.8(l)    Escrow and Paying Agent Agreement (Class C), dated as of November 15, 2004, among Wilmington Trust Company, as Escrow Agent, Morgan Stanley & Co. Incorporated, Citigroup Global Markets Inc., HSBC Securities (USA) Inc. and J.P. Morgan Securities, Inc., as Underwriters, Wilmington Trust Company, as Pass Through Trustee for and on behalf of JetBlue Airways Corporation Pass Through Trust 2004-2C-O, as Pass Through Trustee, and Wilmington Trust Company, as Paying Agent—incorporated by reference to Exhibit 4.13 to our Current Report on Form 8-K dated November 9, 2004.
4.8(m)    ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O—incorporated by reference to Exhibit 4.14 to our Current Report on Form 8-K dated November 9, 2004(4).
4.8(n)    Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O—incorporated by reference to Exhibit 4.15 to our Current Report on Form 8-K dated November 9, 2004.
4.8(o)    Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O—incorporated by reference to Exhibit 4.16 to our Current Report on Form 8-K dated November 9, 2004.
4.8(p)    Schedule to the ISDA Master Agreement, dated as of November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways Corporation Pass Through Trust 2004-2C-O—incorporated by reference to Exhibit 4.17 to our Current Report on Form 8-K dated November 9, 2004.

 

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4.8(q)    Class G-1 Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.18 to our Current Report on Form 8-K dated November 9, 2004.
4.8(r)    Class G-2 Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.19 to our Current Report on Form 8-K dated November 9, 2004.
4.8(s)    Class C Above Cap Liquidity Facility Confirmation, dated November 15, 2004, between Citibank, N.A., as Above Cap Liquidity Facility Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.20 to our Current Report on Form 8-K dated November 9, 2004.
4.8(t)    Insurance and Indemnity Agreement, dated as of November 15, 2004, among MBIA Insurance Corporation, as Policy Provider, JetBlue Airways Corporation and Wilmington Trust Company, as Subordination Agent and Trustee—incorporated by reference to Exhibit 4.21 to our Current Report on Form 8-K dated November 9, 2004.
4.8(u)    MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated November 15, 2004, bearing Policy Number 45243 issued to Wilmington Trust Company, as Subordination Agent for the Class G-1 Certificates—incorporated by reference to Exhibit 4.22 to our Current Report on Form 8-K dated November 9, 2004.
4.8(v)    MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated November 15, 2004, bearing Policy Number 45256 issued to Wilmington Trust Company, as Subordination Agent for the Class G-2 Certificates—incorporated by reference to Exhibit 4.23 to our Current Report on Form 8-K dated November 9, 2004.
4.8(w)    Intercreditor Agreement, dated as of November 15, 2004, among Wilmington Trust Company, as Pass Through Trustee, Landesbank Baden-Württemberg, as Primary Liquidity Provider, Citibank, N.A., as Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.24 to our Current Report on Form 8-K dated November 9, 2004.
4.8(x)    Note Purchase Agreement, dated as of November 15, 2004, among JetBlue Airways Corporation, Wilmington Trust Company, in its separate capacities as Pass Through Trustee, as Subordination Agent, as Escrow Agent and as Paying Agent—incorporated by reference to Exhibit 4.25 to our Current Report on Form 8-K dated November 9, 2004.
4.8(y)    Form of Trust Indenture and Mortgage between JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, as Mortgagee—incorporated by reference to Exhibit 4.26 to our Current Report on Form 8-K dated November 9, 2004.
4.8(z)    Form of Participation Agreement among JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, in its separate capacities as Mortgagee, as Pass Through Trustee and as Subordination Agent—incorporated by reference to Exhibit 4.27 to our Current Report on Form 8-K dated November 9, 2004.
4.9    Indenture, dated as of March 16, 2005, between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee, relating to the Company’s debt securities—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated March 10, 2005.

 

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4.9(b)    Second Supplemental Indenture to the Indenture filed as Exhibit 4.9 to this report, dated as of June 4, 2008, between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee, relating to the Company’s 5.5% Convertible Debentures due 2038—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated June 5, 2008.
4.9(c)    Third Supplemental Indenture to the Indenture filed as Exhibit 4.9 to this report, dated as of June 4, 2008, between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee, relating to the Company’s 5.5% Convertible Debentures due 2038—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated June 5, 2008.
4.10    Pass Through Trust Agreement, dated as of November 14, 2006, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways (Spare Parts) G-1 Pass Through Trust, and the issuance of Three-Month LIBOR plus 0.230% JetBlue Airways (Spare Parts) G-1 Pass Through Certificate—incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K dated November 14, 2006.
4.10(a)    Pass Through Trust Agreement, dated as of November 14, 2006, between JetBlue Airways Corporation and Wilmington Trust Company, as Pass Through Trustee, made with respect to the formation of JetBlue Airways (Spare Parts) B-1 Pass Through Trust, and the issuance of Three-Month LIBOR plus 2.875% JetBlue Airways (Spare Parts) B-1 Pass Through Certificate—incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K dated November 14, 2006.
4.10(b)    Revolving Credit Agreement, dated as of November 14, 2006, between Wilmington Trust Company, as Subordination Agent, as agent and trustee for the JetBlue Airways (Spare Parts) G-1 Pass Through Trust, as Borrower, and Landesbank Hessen-Thüringen Girozentrale, as Primary Liquidity Provider—incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K dated November 14, 2006.
4.10(c)    ISDA Master Agreement, dated as of November 14, 2006, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways (Spare Parts) G-1 Pass Through Trust—incorporated by reference to Exhibit 4.4 to our Current Report on Form 8-K dated November 14, 2006.
4.10(d)    Schedule to the ISDA Master Agreement, dated as of November 14, 2006, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Provider, and Wilmington Trust Company, as Subordination Agent for the JetBlue Airways (Spare parts) G-1 Pass Through Trust—incorporated by reference to Exhibit 4.5 to our Current Report on Form 8-K dated November 14, 2006.
4.10(e)    Class G-1 Above Cap Liquidity Facility Confirmation, dated November 14, 2006, between Morgan Stanley Capital Services Inc., as Above Cap Liquidity Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.6 to our Current Report on Form 8-K dated November 14, 2006.
4.10(f)    Insurance and Indemnity Agreement, dated as of November 14, 2006, among MBIA Insurance Corporation, as Policy Provider, JetBlue Airways Corporation and Wilmington Trust Company, as Subordination Agent and Trustee—incorporated by reference to Exhibit 4.7 to our Current Report on Form 8-K dated November 14, 2006.
4.10(g)    Guarantee, dated as of November 14, 2006, by Morgan Stanley, relating to the Above-Cap Liquidity Facility—incorporated by reference to Exhibit 4.8 to our Current Report on Form 8-K dated November 14, 2006.

 

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4.10(h)    MBIA Insurance Corporation Financial Guaranty Insurance Policy, dated November 14, 2006, bearing Policy Number 487110 issued to Wilmington Trust Company, as Subordination Agent for the Class G-1 Certificates—incorporated by reference to Exhibit 4.9 to our Current Report on Form 8-K dated November 14, 2006.
4.10(i)    Intercreditor Agreement, dated as of November 14, 2006, among Wilmington Trust Company, as Pass Through Trustee, Landesbank Hessen-Thüringen Girozentrale, as Primary Liquidity Provider, Morgan Stanley Capital Services, Inc., as Above-Cap Liquidity Provider, MBIA Insurance Corporation, as Policy Provider, and Wilmington Trust Company, as Subordination Agent—incorporated by reference to Exhibit 4.10 to our Current Report on Form 8-K dated November 14, 2006.
4.10(j)    Note Purchase Agreement, dated as of November 14, 2006, among JetBlue Airways Corporation, Wilmington Trust Company, in its separate capacities as Pass Through Trustee, as Subordination Agent and as Mortgagee—incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated November 14, 2006.
4.10(k)    Trust Indenture and Mortgage, dated November 14, 2006, between JetBlue Airways Corporation, as Owner, and Wilmington Trust Company, as Mortgagee—incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated November 14, 2006.
4.10(l)    Collateral Maintenance Agreement, dated as of November 14, 2006, among, JetBlue Airways Corporation, MBIA Insurance Corporation, as Initial Policy Provider, Wilmington Trust Company, as Mortgagee, and Additional Policy Provider(s), if any, which may from time to time hereafter become parties—incorporated by reference to Exhibit 4.13 to our Current Report on Form 8-K dated November 14, 2006.
4.10(m)    Reference Agency Agreement, dated November 14, 2006, among JetBlue Airways Corporation, Wilmington Trust Company as Subordination Agent and Mortgagee and Reference Agent—incorporated by reference to Exhibit 4.14 to our Current Report on Form 8-K dated November 14, 2006.
4.10(n)    Form of JetBlue Airways (Spare Parts) G-1 Pass Through Certificate (included in Exhibit 4.10)—incorporated by reference to Exhibit 4.15 to our Current Report on Form 8-K dated November 14, 2006.
4.10(o)    Form of JetBlue Airways (Spare Parts) B-1 Pass Through Certificate (included in Exhibit 4.10(a))—incorporated by reference to Exhibit 4.16 to our Current Report on Form 8-K dated November 14, 2006.
4.10(p)    Form of JetBlue Airways (Spare Parts) G-1 Equipment Note—incorporated by reference to Exhibit 4.17 to our Current Report on Form 8-K dated November 14, 2006.
4.10(q)    Form of JetBlue Airways (Spare Parts) B-1 Equipment Note—incorporated by reference to Exhibit 4.18 to our Current Report on Form 8-K dated November 14, 2006.
4.11    Stock Purchase Agreement, dated as of December 13, 2007, between JetBlue Airways Corporation and Deutsche Lufthansa AG—incorporated by reference to Exhibit 4.11 to our Current Report on Form 8-K dated December 13, 2007.
4.11(a)    Amendment No. 1, dated as of January 22, 2008, to the Stock Purchase Agreement, dated as of December 13, 2007, between JetBlue Airways Corporation and Deutsche Lufthansa AG—incorporated by reference to Exhibit 4.11(a) to our Current Report on Form 8-K dated January 23, 2008.
4.12    Registration Rights Agreement, dated as of January 22, 2008, by and between JetBlue Airways Corporation and Deutsche Lufthansa AG—incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated January 23, 2008.

 

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4.13   Supplement Agreement, dated as of May 27, 2008, between JetBlue Airways Corporation and Deutsche Lufthansa AG –incorporated by reference to Exhibit 4.12 to our Current Report on Form 8-K dated May 28, 2008.
4.14   Second Supplemental Indenture dated as of June 4, 2008 between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee—incorporated by reference to Exhibit 4.1 to Current Report on Form 8-K filed on June 5, 2008.
4.15   Third Supplemental Indenture dated as of June 4, 2008 between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee—incorporated by reference to Exhibit 4.2 to Current Report on Form 8-K filed on June 5, 2008.
4.16   Form of Global Debenture—5.50% Convertible Debenture due 2038 (Series A) (included as part of Exhibit 4.1)—incorporated by reference to Exhibit 4.3 to Current Report on Form 8-K filed on June 5, 2008.
4.17   Form of Global Debenture—5.50% Convertible Debenture due 2038 (Series B) (included as part of Exhibit 4.2)—incorporated by reference to Exhibit 4.4 to Current Report on Form 8-K filed on June 5, 2008.
4.18   Fourth Supplemental Indenture dated as of June 9, 2009 between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee—incorporated by reference to Exhibit 4.1 to Current Report on Form 8-K filed on June 9, 2009.
4.19   Fifth Supplemental Indenture dated as of June 9, 2009 between JetBlue Airways Corporation and Wilmington Trust Company, as Trustee—incorporated by reference to Exhibit 4.2 to Current Report on Form 8-K filed on June 9, 2009.
4.20   Form of Global Debenture—6.75% Convertible Debenture due 2039 (Series A)—incorporated by reference to Exhibit 4.3 to Current Report on Form 8-K filed on June 9, 2009.
4.21   Form of Global Debenture—6.75% Convertible Debenture due 2039 (Series B)—incorporated by reference to Exhibit 4.3 to Current Report on Form 8-K filed on June 9, 2009.
10.1**   Airbus A320 Purchase Agreement dated as of April 20, 1999, between AVSA, S.A.R.L. and JetBlue Airways Corporation, including Amendments No. 1 through 11 and Letter Agreements No. 1 through No. 10—incorporated by reference to Exhibit 10.1 to the Registration Statement on Form S-1, as amended (File 333-82576).
10.1(a)**   Amendment No. 12 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated April 19, 2002—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
10.1(b)**   Amendment No. 13 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated November 22, 2002—incorporated by reference to Exhibit 10.3 to our Annual Report on Form 10-K for the year ended December 31, 2002.
10.1(c)**   Amendment No. 14 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated December 18, 2002—incorporated by reference to Exhibit 10.4 to our Annual Report on Form 10-K for the year ended December 31, 2002.
10.1(d)**   Amendment No. 15 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated February 10, 2003—incorporated by reference to Exhibit 10.5 to our Annual Report on Form 10-K for the year ended December 31, 2002.
10.1(e)**   Amendment No. 16 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated April 23, 2003—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K dated June 30, 2003.

 

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10.1(f)**   Amendment No. 17 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated October 1, 2003—incorporated by reference to Exhibit 10.7 to our Annual Report on Form 10-K for the year ended December 31, 2003.
10.1(g)**   Amendment No. 18 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated November 12, 2003—incorporated by reference to Exhibit 10.8 to our Annual Report on Form 10-K for the year ended December 31, 2003.
10.1(h)**   Amendment No. 19 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated June 4, 2004—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2004.
10.1(i)**   Amendment No. 20 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated June 7, 2004—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2004.
10.1(j)**   Amendment No. 21 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated November 19, 2004—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K dated November 19, 2004.
10.1(k)**   Amendment No. 22 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated February 17, 2005—incorporated by reference to Exhibit 10.22(b) to our Annual Report on Form 10-K for the year ended December 31, 2006.
10.1(l)**   Amendment No. 23 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated March 31, 2005—incorporated by reference to Exhibit 10.22(b) to our Annual Report on Form 10-K for the year ended December 31, 2006.
10.1(m)**   Amendment No. 24 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated July 21, 2005—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2005.
10.1(n)**   Amendment No. 25 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated November 23, 2005—incorporated by reference to Exhibit 10.1(n) to our Annual Report on Form 10-K for the year ended December 31, 2005.
10.1(o)**   Amendment No. 26 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated February 27, 2006—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.
10.1(p)**   Amendment No. 27 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated April 25, 2006—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.
10.1(q)**   Amendment No. 28 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated July 6, 2006—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2006.
10.1(r)**   Amendment No. 29 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated December 1, 2006—incorporated by reference to Exhibit 10.22(b) to our Annual Report on Form 10-K for the year ended December 31, 2006.
10.1(s)**   Amendment No. 30 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L., and JetBlue Airways Corporation, dated March 26, 2007—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2007.
10.1(t)**   Amendment No. 31 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated January 21, 2008—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2008.

 

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10.1(u)**   Amendment No. 32 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated May 23, 2008—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2008.
10.1(v)**   Amendment No. 33 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated July 1, 2009—incorporated by reference to Exhibit 10.1(v) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2009.
10.1(w)**   Amendment No. 34 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated February 5, 2010—incorporated by reference to Exhibit 10.1(w) to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010.
10.1(x)**   Amendment No. 35 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated October 1, 2010—incorporated by reference to Exhibit 10.1(x) to our Annual Report on Form 10-K for the year ended December 31, 2010.
10.1(y)**   Amendment No. 36 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated June 17, 2011—incorporated by reference to Exhibit 10.1(y) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2011.
10.1(z)**   Amendment No. 37 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated October 19, 2011.
10.1(aa)**   Amendment No. 38 to Airbus A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, dated October 14, 2011.
10.2**   Letter Agreement, dated April 23, 2003, between AVSA, S.A.R.L. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K dated June 30, 2003.
10.3**   V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, including Side Letters No. 1 through No. 3 and No. 5 through No. 9—incorporated by reference to Exhibit 10.2 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
10.3(a)**   Side Letter No. 10 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated April 25, 2002—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
10.3(b)**   Side Letter No. 11 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated February 10, 2003—incorporated by reference to Exhibit 10.8 to our Annual Report on Form 10-K for the year ended December 31, 2002.
10.3(c)**   Side Letter No. 12 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated March 24, 2003—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
10.3(d)**   Side Letter No. 13 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated April 23, 2003—incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K dated June 30, 2003.
10.3(e)**   Side Letter No. 14 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated October 3, 2003—incorporated by reference to Exhibit 10.15 to our Annual Report on Form 10-K for the year ended December 31, 2003.
10.3(f)**   Side Letter No. 15 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated November 10, 2003—incorporated by reference to Exhibit 10.16 to our Annual Report on Form 10-K for the year ended December 31, 2003.

 

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10.3(g)**   Side Letter No. 16 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated February 20, 2004—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2004.
10.3(h)**   Side Letter No. 17 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated June 11, 2004—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2004.
10.3(i)**   Side Letter No. 18 to V2500 General Terms of Sale between IAE International Aero Engines AG and NewAir Corporation, dated November 19, 2004—incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K dated November 19, 2004.
10.3(j)**   Side Letter No. 19 to V2500 General Terms of Sale between IAE International Aero Engines AG and New Air Corporation, dated July 21, 2005—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2005.
10.3(k)**   Side Letter No. 20 to V2500 General Terms of Sale between IAE International Aero Engines AG and New Air Corporation, dated July 6, 2006—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.
10.3(l)**   Side Letter No. 21 to V2500 General Terms of Sale between IAE International Aero Engines AG and New Air Corporation, dated January 30, 2007—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2007.
10.3(m)**   Side Letter No. 22 to V2500 General Terms of Sale between IAE International Aero Engines AG and New Air Corporation, dated March 27, 2007—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2007.
10.3(n)**   Side Letter No. 23 to V2500 General Terms of Sale between IAE International Aero Engines AG and New Air Corporation, dated December 18, 2007—incorporated by reference to Exhibit 10.3(n) to our Annual Report on Form 10-K, as amended, for the year ended December 31, 2007.
10.3(o)**   Side Letter No. 24 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated April 2, 2008—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2008.
10.3(p)**   Side Letter No. 25 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated May 27, 2008—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2008.
10.3(q)**   Side Letter No. 26 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated January 27, 2009—incorporated by reference to Exhibit 10.3(q) to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2009.
10.3(r)**   Side Letter No. 27 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated June 5, 2009–incorporated by reference to Exhibit 10.3(r) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2009.
10.3(s)**   Side letter No. 28 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated August 31, 2010—incorporated by reference to Exhibit 10.3(s) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2010.
10.3(t)**   Side letter No. 29 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated March 14, 2011—incorporated by reference to Exhibit 10.3(t) to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2011.

 

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10.3(u)**   Side letter No. 30 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated August 17, 2011—incorporated by reference to Exhibit 10.3(u) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2011.
10.3(v)**   Side letter No. 31 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated September 27, 2011—incorporated by reference to Exhibit 10.3(u) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2011.
10.3(w)**   Side letter No. 32 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated November 8, 2011.
10.3(x)**   Side letter No. 33 to V2500 General Terms of Sale between IAE International Aero Engines and New Air Corporation, dated December 1, 2011.
10.4**   Amendment and Restated Agreement between JetBlue Airways Corporation and LiveTV, LLC, dated as of December 17, 2001, including Amendments No. 1, No. 2 and 3—incorporated by reference to Exhibit 10.4 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
10.5**   GDL Patent License Agreement between Harris Corporation and LiveTV, LLC, dated as of September 2, 2002—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for quarter ended September 30, 2002.
10.11*   1999 Stock Option/Stock Issuance Plan—incorporated by reference to Exhibit 10.16 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
10.12*   Amended and Restated Crewmember Stock Purchase Plan, dated April 2, 2007—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2007.
10.13*   2002 Crewmember Stock Purchase Plan—incorporated by reference to Exhibit 10.18 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
10.14*   JetBlue Airways Corporation 401(k) Retirement Plan, amended and restated as of January 1, 2009—incorporated by reference to Exhibit 10.14 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010.
10.15   Form of Director/Officer Indemnification Agreement—incorporated by reference to Exhibit 10.20 to the Registration Statement on Form S-1, as amended (File No. 333-82576) and referenced as Exhibit 10.19 in our Current Report on Form 8-K dated February 12, 2008.
10.17**   EMBRAER-190 Purchase Agreement DCT-025/2003, dated June 9, 2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation— incorporated by reference to Exhibit 10.4 to our Current Report on Form 8-K dated June 30, 2003.
10.17(a)**   Amendment No. 1 to Purchase Agreement DCT-025/2003, dated as of July 8, 2005, between Embraer-Empresa Brasileria de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2005.
10.17(b)**   Amendment No. 2 to Purchase Agreement DCT-025/2003, dated as of January 5, 2006, between Embraer-Empresa Brasileria de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.22(b) to our Annual Report on Form 10-K for the year ended December 31, 2005.
10.17(c)**   Amendment No. 3 to Purchase Agreement DCT-025/2003, dated as of December 4, 2006, between Embraer-Empresa Brasileria de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.21( c) to our Annual Report on Form 10-K for the year ended December 31, 2006.

 

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10.17(d)**   Amendment No. 4 to Purchase Agreement DCT-025/2003, dated as of October 17, 2007, between Embraer-Empresa Brasileria de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(d) to our Annual Report on Form 10-K for the year ended December 31, 2007.
10.17(e)**   Amendment No. 5 to Purchase Agreement DCT-025/2003, dated as of July 18, 2008, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2008.
10.17(f)**   Amendment No. 6 to Purchase Agreement DCT-025/2003, dated as of February 17, 2009, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(f) to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2009.
10.17(g)**   Amendment No. 7 to Purchase Agreement DCT-025/2003, dated as of December 14, 2009, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(g) to our Annual Report on Form 10-K for the year ended December 31, 2009.
10.17(h)**   Amendment No. 8 to Purchase Agreement DCT-025/2003, dated as of March 11, 2010, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(h) to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010.
10.17(i)**   Amendment No. 9 to Purchase Agreement DCT-025/2003, dated as of May 24, 2010, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(i) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2010.
10.17(j)**   Amendment No. 10 to Purchase Agreement DCT-025/2003, dated as of September 10, 2010, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.17(j) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2010.
10.17(k)**   Amendment No. 11 to Purchase Agreement DCT-025/2003, dated as of October 20, 2011, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation.
10.17(l)**   Amendment No. 12 to Purchase Agreement DCT-025/2003, dated as of October 25, 2011, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation.
10.18**   Letter Agreement DCT-026/2003, dated June 9, 2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.5 to our Current Report on Form 8-K dated June 30, 2003.
10.18(a)**   Amendment No. 1, dated as of July 8, 2005, to Letter Agreement DCT-026/2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.4 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2005.
10.18(b)**   Amendment No. 2, dated as of January 5, 2006, to Letter Agreement DCT-026/2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.22(b) to our Annual Report on Form 10-K for the year ended December 31, 2006.

 

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10.18(c)**   Amendment No. 3, dated as of December 4, 2006, to Letter Agreement DCT-026/2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.22( c) to our Annual Report on Form 10-K for the year ended December 31, 2006.
10.18(d)**   Amendment No. 4, dated as of October 17, 2007, to Letter Agreement DCT-026/2003, between Embraer-Empresa Brasileria de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.18(d) to our Annual Report on Form 10-K for the year ended December 31, 2007.
10.18(e)**   Amendment No. 5 to Letter Agreement DCT-026/2003, dated as of March 6, 2008, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2008.
10.18(f)**   Amendment No. 6 to Letter Agreement DCT-026/2003, dated as of July 18, 2008, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2008.
10.18(g)**   Amendment No. 7 to Letter Agreement DCT-026/2003, dated as of February 17, 2009, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.18(g) to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2009.
10.18(h)**   Amendment No. 8 to Letter Agreement DCT-026/2003, dated as of December 14, 2009, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.18(h) to the Annual Report on Form 10-K for the year ended December 31, 2009.
10.18(i)**   Amendment No. 9 to Letter Agreement DCT-026/2003, dated as of March 11, 2010, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.18(i) to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2010.
10.20   Agreement of Lease (Port Authority Lease No. AYD-350), dated November 22, 2005, between The Port Authority of New York and New Jersey and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.30 to our Annual Report on Form 10-K for the year ended December 31, 2005.
10.21*   Amended and Restated 2002 Stock Incentive Plan, dated November 7, 2007, and form of award agreement—incorporated by reference to Exhibit 10.21 to the Annual Report for Form 10-K for the year ended December 31, 2008.
10.22*   JetBlue Airways Corporation Executive Change in Control Severance Plan, dated as of June 28, 2007—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K, dated June 28, 2007.
10.23*   Employment Agreement, dated February 11, 2008, between JetBlue Airways Corporation and David Barger—incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2008.
10.23(a)*   Amendment to Employment Agreement, dated July 8, 2009, between JetBlue Airways Corporation and David Barger—incorporated by reference to Exhibit 10.23(a) to our Annual Report on Form 10-K for the year ended December 31, 2009.

 

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10.23(b)*   Amendment no. 2 to Employment Agreement, dated December 21, 2010, between JetBlue Airways Corporation and David Barger—incorporated by reference to Exhibit 10.23(b) to our Current Report on Form 8-K filed on December 22, 2010.
10.24(a)*   Amendment and General Release, dated November 10, 2009, between JetBlue Airways Corporation and Russell Chew—incorporated by reference to Exhibit 10.31 (on Edgar) to our Annual Report on Form 10-K for the year ended December 31, 2009.
10.25   Share Lending Agreement, dated as of May 29, 2008 between JetBlue Airways Corporation and Morgan Stanley Capital Services, Inc.—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on May 30, 2008.
10.26   Pledge and Escrow Agreement (Series A Debentures) dated as of June 4, 2008 among JetBlue Airways Corporation, Wilmington Trust Company, as Trustee, and Wilmington Trust Company, as Escrow Agent—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on June 5, 2008.
10.27   Pledge and Escrow Agreement (Series B Debentures) dated as of June 4, 2008 among JetBlue Airways Corporation, Wilmington Trust Company, as Trustee, and Wilmington Trust Company, as Escrow Agent—incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed on June 5, 2008.
10.29   Option Letter Agreement, dated as of June 3, 2009, between JetBlue Airways Corporation and Deutsche Lufthansa AG—incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on June 4, 2009.
10.30**   Sublease by and between JetBlue Airways Corporation and Metropolitan Life Insurance Company—incorporated by reference to Exhibit 10.30 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2010.
10.31(a)   JetBlue Airways Corporation 2011 Incentive Compensation Plan—incorporated by reference to Exhibit 10.31(a) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2011.
10.31(b)   JetBlue Airways Corporation 2011 Incentive Compensation Plan forms of award agreement—incorporated by reference to Exhibit 10.31(b) to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2011.
10.32**   Memorandum of Understanding, dated June 17, 2011, between Airbus S.A.S. and JetBlue Airways Corporation—incorporated by reference to Exhibit 10.32 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2011.
10.32(a)**   Side letter agreement, dated September 30, 2011, to Memorandum of Understanding, dated June 17, 2011, between Airbus S.A.S. and JetBlue Airways Corporation—incorporated by reference to 10.32(a) to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2011.
10.33**   Airbus A320 Family Purchase Agreement, dated October 19, 2011, between Airbus S.A.S. and JetBlue Airways Corporation, including letter agreements 1-8, each dated as of same date.
10.34*   Agreement between Ed Barnes and JetBlue Airways Corporation, dated December 1, 2011.
10.35*   JetBlue Airways Corporation 2011 Crewmember Stock Purchase Plan.
12.1   Computation of Ratio of Earnings to Fixed Charges.
21.1   List of Subsidiaries.
23   Consent of Ernst & Young LLP.
31.1   Rule 13a-14(a)/15d-14(a) Certification of the Chief Executive Officer.
31.2   Rule 13a-14(a)/15d-14(a) Certification of the Chief Financial Officer.

 

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32    Section 1350 Certifications.
99.2    Letter of Approval from the City of Long Beach Department of Public Works, dated May 22, 2001, approving City Council Resolution C-27843 regarding Flight Slot Allocation at Long Beach Municipal Airport—incorporated by reference to Exhibit 99.2 to the Registration Statement on Form S-1, as amended (File No. 333-82576).
101.INS***    XBRL Instance Document
101.SCH***    XBRL Taxonomy Extension Schema Document
101.CAL***    XBRL Taxonomy Extension Calculation Linkbase Document
101.LAB***    XBRL Taxonomy Extension Labels Linkbase Document
101.PRE***    XBRL Taxonomy Extension Presentation Linkbase Document

 

* Compensatory plans in which the directors and executive officers of JetBlue participate.

 

** Pursuant to a Confidential Treatment Request under Rule 24b-2 filed with and approved by the SEC, portions of this exhibit have been omitted.

 

*** XBRL (eXtensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections.

 

(1) Documents substantially identical in all material respects to the document filed as Exhibit 4.4 to our Current Report on Form 8-K dated March 24, 2004 (which exhibit relates to formation of JetBlue Airways Pass Through Trust, Series 2004-1G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-1G-1-O, Pass Through Certificates) have been entered into with respect to formation of each of JetBlue Airways Pass Through Trusts, Series 2004-1G-2-O and Series 2004-1C-O and the issuance of each of Three-Month LIBOR plus 0.420% JetBlue Airways Pass Through Trust, Series 2004-1G-2-O and Three-Month LIBOR plus 4.250% JetBlue Airways Pass Through Trust, Series 2004-1C-O. Pursuant to Instruction 2 of Item 601 of Regulation S-K, Exhibit 99.1, incorporated by reference to our Current Report on Form 8-K dated March 24, 2004, sets forth the terms by which such substantially identical documents differ from Exhibit 4.7(c).

 

(2) Documents substantially identical in all material respects to the document filed as Exhibit 4.14 our Current Report on Form 8-K dated March 24, 2004 (which exhibit relates to an above-cap liquidity facility provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-1G-1-O) have been entered into with respect to the above-cap liquidity facilities provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-1G-2-O and the JetBlue Airways Corporation Pass Through Trust 2004-1C-O. Pursuant to Instruction 2 of Item 601 of Regulation S-K, Exhibit 99.2, incorporated by reference to our Current Report on Form 8-K dated March 24, 2004, sets forth the terms by which such substantially identical documents differ from Exhibit 4.7(m).

 

(3) Documents substantially identical in all material respects to the document filed as Exhibit 4.4 to our Current Report on Form 8-K dated November 9, 2004 (which exhibit relates to formation of JetBlue Airways Pass Through Trust, Series 2004-2G-1-O and the issuance of Three-Month LIBOR plus 0.375% JetBlue Airways Pass Through Trust, Series 2004-2G-1-O, Pass Through Certificates) have been entered into with respect to formation of each of the JetBlue Airways Pass Through Trusts, Series 2004-2G-2-O and Series 2004-2C-O and the issuance of each of Three-Month LIBOR plus 0.450% JetBlue Airways Pass Through Trust, Series 2004-2G-2-O and Three-Month LIBOR plus 3.100% JetBlue Airways Pass Through Trust, Series 2004-2C-O. Pursuant to Instruction 2 of Item 601 of Regulation S-K, Exhibit 99.1, incorporated by reference to our Current Report on Form 8-K dated November 9, 2004, sets forth the terms by which such substantially identical documents differ from Exhibit 4.8(c).

 

110


Table of Contents
(4) Documents substantially identical in all material respects to the document filed as Exhibit 4.14 to our Current Report on Form 8-K dated November 9, 2004 (which exhibit relates to an above-cap liquidity facility provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-2G-1-O) have been entered into with respect to the above-cap liquidity facilities provided on behalf of the JetBlue Airways Corporation Pass Through Trust 2004-2G-2-O and the JetBlue Airways Corporation Pass Through Trust 2004-2C-O. Pursuant to Instruction 2 of Item 601 of Regulation S-K, Exhibit 99.2, incorporated by reference to our Current Report on Form 8-K dated November 9, 2004, sets forth the terms by which such substantially identical documents differ from Exhibit 4.8(m).

 

111


Table of Contents

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of

JetBlue Airways Corporation

We have audited the consolidated financial statements of JetBlue Airways Corporation as of December 31, 2011 and 2010, and for each of the three years in the period ended December 31, 2011, and have issued our report thereon dated February 28, 2012 (included elsewhere in this Annual Report on Form 10-K). Our audits also included the financial statement schedule listed in Item 15(2) of this Annual Report on Form 10-K. This schedule is the responsibility of the Company’s management. Our responsibility is to express an opinion on this schedule based on our audits.

In our opinion, the financial statement schedule referred to above, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

/s/ Ernst & Young LLP

New York, New York

February 28, 2012

 

S-1


Table of Contents

 

Schedule Valuation and Qualifying Accounts

JetBlue Airways Corporation

Schedule II—Valuation and Qualifying Accounts

(in thousands)

 

            Additions               

Description

   Balance at
beginning of
period
     Charged to
Costs and
Expenses
     Charged to
Other
Accounts
     Deductions     Balance at
end of
period
 

Year Ended December 31, 2011

             

Allowances deducted from asset accounts:

             

Allowance for doubtful accounts

   $ 6,172       $ 7,017       $ —         $ 5,603 (1)    $ 7,586   

Allowance for obsolete inventory parts

     3,636         1,026         —           776 (3)      3,886   

Valuation allowance for deferred tax assets

     20,672         254         —           54 (2)      20,872   

Year Ended December 31, 2010

             

Allowances deducted from asset accounts:

             

Allowance for doubtful accounts

   $ 5,660       $ 7,471       $ —         $ 6,959 (1)    $ 6,172   

Allowance for obsolete inventory parts

     3,373         1,018         —           755 (3)      3,636   

Valuation allowance for deferred tax assets

     24,631         —           —           3,959 (2)      20,672   

Year Ended December 31, 2009

             

Allowances deducted from asset accounts:

             

Allowance for doubtful accounts

   $ 5,155       $ 2,099       $ —         $ 1,594 (1)    $ 5,660   

Allowance for obsolete inventory parts

     4,184         830         —           1,641 (3)      3,373   

Valuation allowance for deferred tax assets

     25,579         —           —           948 (2)      24,631   

 

(1) Uncollectible accounts written off, net of recoveries.

 

(2) Attributable to recognition and write-off of deferred tax assets.

 

(3) Inventory scrapped.

 

S-2

Exhibit 10.1(z)

Amendment No. 37

to the A320 Purchase Agreement

Dated as of April 20, 1999

between

AVSA, S.A.R.L.

and

JetBlue Airways Corporation

This Amendment No. 37 (hereinafter referred to as the “Amendment”) is entered into as of October 19, 2011 between AIRBUS, S.A.S. (legal successor to AVSA, S.A.R.L.), organized and existing under the laws of the Republic of France, having its registered office located at 1, Rond-Point Maurice Bellonte, 31700 Blagnac, France (hereinafter referred to as the “Seller”), and JetBlue Airways Corporation, a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 118-29 Queens Boulevard, Forest Hills, New York 11375 USA (hereinafter referred to as the “Buyer”).

WITNESSETH

WHEREAS, the Buyer and the Seller entered into an A320 Purchase Agreement, dated as of April 20, 1999, relating to the sale by the Seller and the purchase by the Buyer of certain Airbus A320-200 aircraft (the “Aircraft”), including twenty-five option aircraft (the “Option Aircraft”), which, together with all Exhibits, Appendixes and Letter Agreements attached thereto and as amended by Amendment No. 1, dated as of September 30, 1999, Amendment No. 2, dated as of March 13, 2000, Amendment No. 3, dated as of March 29, 2000, Amendment No. 4, dated as of September 29, 2000, Amendment No. 5 dated as of November 7, 2000, Amendment No. 6 dated as of November 20, 2000, Amendment No. 7 dated as of January 29 2001, Amendment No. 8 dated as of May 3, 2001, Amendment No. 9 dated as of July 18, 2001, Amendment No. 10 dated as of November 16, 2001, Amendment No. 11 dated as of December 31, 2001, Amendment No. 12 dated as of April 19, 2002, Amendment No. 13 dated as of November 22, 2002, Amendment No. 14 dated as of December 18, 2002 and Amendment No. 15 dated as of February 10, 2003, Amendment No. 16 dated as of April 23, 2003, Amendment No. 17 dated as of October 1, 2003, Amendment No. 18 dated as of November 12, 2003, Amendment No. 19 dated as of June 4, 2004, Amendment No. 20 dated as of June 7, 2004, Amendment No. 21 dated as of November 19, 2004, Amendment No. 22 dated as of February 17, 2005, Amendment No. 23 dated as of March 31, 2005, Amendment No. 24 dated as of July 21, 2005, Amendment No. 25 dated as of November 23, 2005, Amendment No. 26 dated as of February 27, 2006, Amendment No. 27 dated as of April 25, 2006, Amendment No. 28 dated as of July 6, 2006, Amendment No. 2l dated as of December 1, 2006, Amendment No. 30 dated as of March 20, 2007, Amendment No. 31 dated as of January 28, 2008, Amendment No. 32 dated as of May 23, 2008, Amendment No. 33 dated July 1, 2009, Amendment No. 34 dated February 5, 2010, Amendment No. 35 dated October 1, 2010 and Amendment No. 36 dated June 17, 2011 is hereinafter called the “Agreement”;


WHEREAS the Buyer wishes and the Seller agrees to reschedule the delivery of a certain number of Aircraft and cancel Option Aircraft;

NOW, THEREFORE, IT IS AGREED AS FOLLOWS

 

1. DEFINITIONS

Capitalized terms used herein and not otherwise defined herein will have the meanings assigned to them in the Agreement. The terms “herein,” “hereof’ and “hereunder” and words of similar import refer to this Amendment.

 

2. PURCHASE RIGHT AIRCRAFT

 

2.1 Purchase Right Cancellation

The Buyer and the Seller agree to cancel the remaining eight (8) Purchase Right Aircraft. All rights and obligations of the parties related to these eight (8) Purchase Right Aircraft are hereby extinguished except as set forth in Paragraph 2.2.

 

2.2 Purchase Right Fee

With respect to the Purchase Right Aircraft cancelled pursuant to Paragraph 2.1, the Purchase Right Fee paid to the Seller by the Buyer, in the amount of [***] per Purchase Right Aircraft for an aggregate total of [***] will be [***].

 

3. EFFECT OF THE AMENDMENT

The Agreement will be deemed amended to the extent herein provided, and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.

Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.

This Amendment will become effective upon execution thereof.

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

2


4. CONFIDENTIALITY

This Amendment is subject to the confidentiality provisions set forth in Clause 22.5 of the Agreement.

 

5. ASSIGNMENT

Notwithstanding any other provision of this Amendment or of the Agreement, this Amendment will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 5 will be void and of no force or effect.

 

6. COUNTERPARTS

This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

3


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers or agents on the dates written below.

 

JETBLUE AIRWAYS CORPORATION      AIRBUS S.A.S.
By:  

/s/ Mark D. Powers

     By:  

/s/ Christophe Mourey

Its:  

CFO

     Its:  

Senior Vice President Contracts

 

4

Exhibit 10.1(aa)

Amendment No. 38

to the A320 Purchase Agreement

Dated as of April 20, 1999

between

AVSA, S.A.R.L.

and

JetBlue Airways Corporation

This Amendment No. 3 (hereinafter referred to as the “Amendment”) is entered into as of October 14, 2011 between AIRBUS, S.A.S. (legal successor to AVSA, S.A.R.L.), organized and existing under the laws of the Republic of France, having its registered office located at 1, Rond-Point Maurice Bellonte, 31700 Blagnac, France (hereinafter referred to as the “Seller”), and JetBlue Airways Corporation, a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 118-29 Queens Boulevard, Forest Hills, New York 11375 USA (hereinafter referred to as the “Buyer”).

WITNESSETH

WHEREAS, the Buyer and the Seller entered into an A320 Purchase Agreement, dated as of April 20, 1999, relating to the sale by the Seller and the purchase by the Buyer of certain Airbus A320-200 aircraft (the “Aircraft”), including twenty-five option aircraft (the “Option Aircraft”), which, together with all Exhibits, Appendixes and Letter Agreements attached thereto and as amended by Amendment No. 1, dated as of September 30, 1999, Amendment No. 2, dated as of March 13, 2000, Amendment No. 3, dated as of March 29, 2000, Amendment No. 4, dated as of September 29, 2000, Amendment No. 5 dated as of November 7, 2000, Amendment No. 6 dated as of November 20, 2000, Amendment No. 7 dated as of January 29 2001, Amendment No. 8 dated as of May 3, 2001, Amendment No. 9 dated as of July 18, 2001, Amendment No. 10 dated as of November 16, 2001, Amendment No. 11 dated as of December 31, 2001, Amendment No. 12 dated as of April 19, 2002, Amendment No. 13 dated as of November 22, 2002, Amendment No. 14 dated as of December 18, 2002 and Amendment No. 15 dated as of February 10, 2003, Amendment No. 16 dated as of April 23, 2003, Amendment No. 17 dated as of October 1, 2003, Amendment No. 18 dated as of November 12, 2003, Amendment No. 19 dated as of June 4, 2004, Amendment No. 20 dated as of June 7, 2004, Amendment No. 21 dated as of November 19, 2004, Amendment No. 22 dated as of February 17, 2005, Amendment No. 23 dated as of March 31, 2005, Amendment No. 24 dated as of July 21, 2005,


Amendment No. 25 dated as of November 23, 2005, Amendment No 26 dated as of February 27, 2006, Amendment No. 27 dated as of April 25, 2006, Amendment No. 28 dated as of July 6, 2006, Amendment No. 29 dated as of December 1, 2006, Amendment No, 30 dated as of March 20, 2007, Amendment No. 31 dated as of January 28, 2008, Amendment No. 32 dated as of May 23, 2008, Amendment No. 33 dated July 1, 2009, Amendment No. 34 dated February 5, 2010, Amendment No. 35 dated October 1, 2010, Amendment No. 36 dated June 17, 2011 and Amendment No. 37 dated as of even date herewith is hereinafter called the “Agreement”;

WHEREAS, the Buyer has requested, and the Seller has agreed, on the terms and conditions set forth in this Amendment, to cancel from this Agreement and transfer into a new purchase agreement between the Seller and the Buyer, the remaining fifty-two (52) Aircraft on order under the Agreement;

WHEREAS, the Buyer and the Seller wish to amend certain other terms of the Agreement to reflect the foregoing;

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1 DEFINITIONS

Capitalized terms used herein and not otherwise defined herein will have the meanings assigned to them in the Agreement. The terms “herein,” “hereof’ and “hereunder” and words of similar import refer to this Amendment.

 

2 ORDER CANCELLATION AND SURVIVAL OF THE AGREEMENT

 

2.1 The Buyer and the Seller agree that the Buyer hereby cancels its order, under the Agreement, for the remaining fifty-two (52) A320 Aircraft (as such term is defined in the Agreement) set forth in Exhibit 1 to this Amendment and transfers the same (the “ Transferred Aircraft ”) into the new A320 Family Purchase Agreement between the Buyer and the Seller dated as of even date herewith (the “ New PA ”). As a result of such transfer, the Buyer and the Seller will have no further rights or obligations to one another in respect of the Transferred Aircraft under the Agreement, except as set forth in Paragraph 2.3 below.

 

2.2 Therefore, only the rights and obligations of the Seller and the Buyer under the Agreement in the provisions listed below survive such cancellation;

 

  (i) the provisions of this Amendment, and

 

2


  (ii) the provisions of the Agreement that apply to Aircraft that have been delivered, except that the revision service set forth in Clause 14.4.1 will be offered [***].

 

2.3 Predelivery Payments

The Buyer and the Seller acknowledge that the Seller has received from the Buyer [***] payments in respect of the Transferred Aircraft. The aggregate amount of such payments is [***] (the “Previous Predelivery Payments”) as of even date herewith. Upon signature of this Amendment, the Previous Predelivery Payments will be irrevocably transferred to the New PA and allocated as specified in such as New PA.

 

3 DELIVERY SCHEDULE

The delivery schedule set forth in Clause 9.1.1 of the Agreement is hereby deleted and replaced by the following quoted provisions:

QUOTE

 

CACId No.

  

Rank No.

  

Aircraft

   Delivery

41 199

   No 1    Pre-Amendment No. 16 Aircraft    June    2000

41 200

   No. 2    Pre-Amendment No. 16 Aircraft    July    2000

41 203

   No. 3    Pre-Amendment No. 16 Aircraft    July    2000

41 201

   No. 4    Pre-Amendment No. 16 Aircraft    August    2000

41 202

   No. 5    Pre-Amendment No. 16 Aircraft    October    2000

41 204

   No. 6    Pre-Amendment No. 16 Aircraft    November    2000

41 205

   No. 7    Pre-Amendment No. 16 Aircraft    July    2001

41 206

   No. 8    Pre-Amendment No. 16 Aircraft    August    2001

41 210

   No. 9    Pre-Amendment No. 16 Aircraft    August    2001

41 207

   No. 10    Pre-Amendment No. 16 Aircraft    September    2001

41 208

   No. 11    Pre-Amendment No. 16 Aircraft    October    2001

41 209

   No. 12    Pre-Amendment No. 16 Aircraft    November    2001

41 228

   No. 13    Pre-Amendment No. 16 Aircraft    December    2001

41 211

   No. 14    Pre-Amendment No. 16 Aircraft    January    2002

41 212

   No. 15    Pre-Amendment No. 16 Aircraft    February    2002

41 218

   No. 16    Pre-Amendment No. 16 Aircraft    March    2002

41 224

   No. 17    Pre-Amendment No. 16 Aircraft    May    2002

41 227

   No. 18    Pre-Amendment No. 16 Aircraft    May    2002

41 225

   No. 19    Pre-Amendment No. 16 Aircraft    June    2002

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

3


 

CACId No.

  

Rank No.

  

Aircraft

   Delivery

41 213

   No. 20    Pre-Amendment No. 16 Aircraft    July    2002

41 214

   No. 21    Pre-Amendment No. 16 Aircraft    August    2002

41 234

   No. 22    Pre-Amendment No. 16 Aircraft    September    2002

41 215

   No. 23    Pre-Amendment No. 16 Aircraft    September    2002

41 216

   No. 24    Pre-Amendment No. 16 Aircraft    October    2002

41 217

   No. 25    Pre-Amendment No. 16 Aircraft    November    2002

124 965

   No. 26    Pre-Amendment No. 16 Aircraft    December    2002

41 235

   No. 27    Pre-Amendment No. 16 Aircraft    December    2002

41 220

   No. 28    Pre-Amendment No. 16 Aircraft    December    2002

41 219

   No. 29    Pre-Amendment No. 16 Aircraft    December    2002

41 236

   No. 30    Pre-Amendment No. 16 Aircraft    February    2003

104 399

   No. 31    Pre-Amendment No. 16 Aircraft    February    2003

41 237

   No. 32    Pre-Amendment No. 16 Aircraft    March    2003

124 966

   No. 33    Pre-Amendment No. 16 Aircraft    May    2003

41 221

   No. 34    Pre-Amendment No. 16 Aircraft    June    2003

41 238

   No. 35    Pre-Amendment No. 16 Aircraft    June    2003

41 222

   No. 36    Pre-Amendment No. 16 Aircraft    July    2003

104 400

   No. 37    Pre-Amendment No. 16 Aircraft    August    2003

104 401

   No. 38    Pre-Amendment No. 16 Aircraft    September    2003

41 223

   No. 39    Pre-Amendment No. 16 Aircraft    October    2003

104 402

   No. 40    Pre-Amendment No. 16 Aircraft    November    2003

104 443

   No. 41    Pre-Amendment No 16 Aircraft    November    2003

104 403

   No. 42    Pre-Amendment No. 16 Aircraft    December    2003

124 964

   No. 43    Pre-Amendment No. 16 Aircraft    December    2003

41 226

   No. 44    Pre-Amendment No. 16 Aircraft    December    2003

111 579

   No. 45    Pre-Amendment No. 16 Aircraft    January    2004

41 245

   No. 46    Pre-Amendment No. 16 Aircraft    February    2004

41 246

   No. 47    Pre-Amendment No. 16 Aircraft    February    2004

41 229

   No. 48    Pre-Amendment No, 16 Aircraft    April    2004

41 247

   No. 49    Pre-Amendment No. 16 Aircraft    May    2004

41 248

   No. 50    Pre-Amendment No. 16 Aircraft    June    2004

104 404

   No. 51    Pre-Amendment No. 16 Aircraft    July    2004

104 405

   No. 52    Pre-Amendment No. 16 Aircraft    August    2004

41 230

   No. 53    Pre-Amendment No. 16 Aircraft    September    2004

104 406

   No. 54    Pre-Amendment No. 16 Aircraft    October    2004

124 967

   No. 55    Amendment No. 16 Firm Aircraft    October    2004

104 415

   No. 56    Pre-Amendment No. 16 Aircraft    October    2004

104 407

   No. 57    Pre-Amendment No. 16 Aircraft    November    2004

104 408

   No. 58    Pre-Amendment No. 16 Aircraft    November    2004

124 968

   No. 59    Amendment No. 16 Firm Aircraft    December    2004

104 409

   No. 60    Pre-Amendment No. 16 Aircraft    January    2005

41 232

   No. 61    Pre-Amendment No. 16 Aircraft    February    2005

 

4


CACId No.

  

Rank No.

  

Aircraft

   Delivery

124 959

   No. 62    Amendment No. 16 Firm Aircraft    February    2005

104 410

   No. 63    Pre-Amendment No. 16 Aircraft    February    2005

104 411

   No. 64    Pre-Amendment No. 16 Aircraft    April    2005

41 233

   No. 65    Pre-Amendment No. 16 Aircraft    May    2005

104 412

   No. 66    Pre-Amendment No. 16 Aircraft    June    2005

124 960

   No. 67    Amendment No. 16 Finn Aircraft    June    2005

104 413

   No. 68    Pre-Amendment No. 16 Aircraft    July    2005

104 418

   No. 69    Pre-Amendment No. 16 Aircraft    July    2005

104 414

   No. 70    Pre-Amendment No. 16 Aircraft    August    2005

124 961

   No. 71    Amendment No. 16 Firm Aircraft    September    2005

104 416

   No. 72    Pre-Amendment No. 16 Aircraft    October    2005

104 417

   No. 73    Pre-Amendment No. 16 Aircraft    November    2005

124 962

   No. 74    Amendment No. 16 Firm Aircraft    November    2005

124 963

   No. 75    Amendment No. 16 Firm Aircraft    December    2005

159 936

   No. 76    Amendment No. 20 Firm Aircraft    January    2006

104 419

   No. 77    Pre-Amendment No. 16 Aircraft    February    2006

41 239

   No. 78    Amendment No. 16 Firm Aircraft    March    2006

41 240

   No. 79    Amendment No. 16 Firm Aircraft    March    2006

41 241

   No. 80    Amendment No. 16 Firm Aircraft    May.    2006

104 421

   No 81    Pre-Amendment No 16 Aircraft    June    2006

41 242

   No. 82    Amendment No. 16 Firm Aircraft    June    2006

41 243

   No. 84    Amendment No. 16 Firm Aircraft    July    2006

104 422

   No. 85    Pre-Amendment No. 16 Aircraft    August    2006

41 244

   No. 86    Amendment No. 16 Firm Aircraft    September    2006

69 719

   No. 87    Amendment No. 16 Firm Aircraft    September    2006

104 423

   No. 88    Pre-Amendment No. 16 Aircraft    October    2006

69 720

   No. 89    Amendment No. 16 Firm Aircraft    November    2006

104 420

   No. 83    Pre-Amendment No. 16 Aircraft    December    2006

69 721

   No. 90    Amendment No. 16 Firm Aircraft    December    2006

159 937

   No. 91    Amendment No. 20 Firm Aircraft    December    2006

104 424

   No. 92    Pre-Amendment No. 16 Aircraft    January    2007

104 425

   No. 93    Pre-Amendment No. 16 Aircraft    February    2007

159 938

   No. 94    Amendment No. 20 Firm Aircraft    February    2007

104 426

   No. 95    Pre-Amendment No. 16 Aircraft    March    2007

104 427

   No. 96    Pre-Amendment No. 16 Aircraft    April    2007

104 428

   No. 97    Pre-Amendment No. 16 Aircraft    May    2007

69 722

   No. 98    Amendment No. 16 Firm Aircraft    June    2007

69 724

   No. 99    Amendment No. 16 Firm Aircraft    July    2007

96 459

   No. 100    Amendment No. 16 Firm Aircraft    September    2007

104 439

   No. 101    Amendment No. 16 Firm Aircraft    October    2007

104 441

   No. 102    Amendment No. 16 Firm Aircraft    November    2007

41231

   No. 103    Amendment No. 16 Firm Aircraft    December    2007

 

5


CACId No.

  

Rank No.

  

Aircraft

   Delivery

159 896

   No. 104    Amendment No. 16 Firm Aircraft    January    2008

159 897

   No. 105    Amendment No. 16 Firm Aircraft    February    2008

159 898

   No. 106    Amendment No, 16 Firm Aircraft    March    2008

159 899

   No. 107    Amendment No. 16 Firm Aircraft    April    2008

159 900

   No. 108    Amendment No. 16 Firm Aircraft    May    2008

159 901

   No. 109    Amendment No. 16 Firm Aircraft    June    2008

159 902

   No. 110    Amendment No. 16 Firm Aircraft    July    2008

159 903

   No. 111    Amendment No. 16 Firm Aircraft    August    2008

159 904

   No. 112    Amendment No. 16 Firm Aircraft    September    2008

159 905

   No. 113    Amendment No. 16 Firm Aircraft    October    2008

159 906

   No. 114    Amendment No. 16 Firm Aircraft    November    2008

159 907

   No. 115    Amendment No. 16 Firm Aircraft    December    2008

159 913

   No. 116    Amendment No. 16 Firm Aircraft    January    2009

159 914

   No. 117    Amendment No. 16 Firm Aircraft    February    2009

159 915

   No. 118    Amendment No. 16 Firm Aircraft    March    2009

69 723

   No. 119    Amendment No. 16 Firm Aircraft    January    2011

69 725

   No. 120    Amendment No. 16 Firm Aircraft    February    2011

159 919

   No. 121    Amendment No. 16 Firm Aircraft    March    2011

UNQUOTE

 

4 EFFECT OF THE AMENDMENT

 

4.1 Signature of this Amendment contemporaneously with the execution of the New PA is a condition precedent to the effectiveness of this Amendment.

 

4.2 The Agreement will be deemed amended to the extent herein provided, and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.

 

4.3 Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.

This Amendment will become effective upon execution thereof.

 

5 CONFIDENTIALITY

This Amendment is subject to the confidentiality provisions set forth in Clause 22.5 of the Agreement.

 

6


6 ASSIGNMENT

Notwithstanding any other provision of this Amendment or of the Agreement, this Amendment will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 6 will be void and of no force or effect.

 

7 COUNTERPARTS

This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

7


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers or agents on the dates written below.

 

JETBLUE AIRWAYS CORPORATION      AIRBUS S.A.S.
By:  

/s/ Mark D. Powers

     By:  

/s/ Christophe Mourey

Its:  

CFO

     Its:  

Senior Vice President Contracts

 

8


EXHIBIT 1

 

    

CACId No.

  

Rank No.

  

Aircraft

   Delivery
1    159 908    No. 122    Amendment No. 16 Firm Aircraft    [***]   2011
2    159 947    No. 123    Amendment No. 20 Firm Aircraft    [***]   2012
3    159 943    No. 124    Amendment No. 20 Firm Aircraft    [***]   2012
4    159 950    No. 125    Amendment No. 20 Firm Aircraft    [***]   2012
5    159 951    No. 126    Amendment No. 20 Firm Aircraft    [***]   2012
6    159 923    No. 127    Amendment No 16 Firm Aircraft    [***]   2012
7    159 924    No. 128    Amendment No. 16 Firm Aircraft    [***]   2012
8    159 925    No. 129    Amendment No. 16 Firm Aircraft    [***]   2012
9    159 939    No. 130    Amendment No. 20 Firm Aircraft    Year   2013
10    159 960    No. 131    Amendment No. 20 Firm Aircraft    Year   2013
11    159 961    No. 132    Amendment No. 20 Firm Aircraft    Year   2013
12    159 962    No. 133    Amendment No. 20 Firm Aircraft    Year   2013
13    159 963    No. 134    Amendment No. 20 Firm Aircraft    Year   2013
14    159 964    No. 135    Amendment No. 20 Firm Aircraft    Year   2013
15    159 965    No. 136    Amendment No. 20 Firm Aircraft    Year   2013
16    159 916    No. 137    Amendment No. 16 Firm Aircraft    Year   2014
17    159 940    No. 138    Amendment No. 20 Firm Aircraft    Year   2014
18    159 941    No. 139    Amendment No. 20 Firm Aircraft    Year   2014
19    159 944    No. 140    Amendment No. 20 Firm Aircraft    Year   2014
20    159 945    No. 141    Amendment No. 20 Firm Aircraft    Year   2014
21    159 946    No. 142    Amendment No. 20 Firm Aircraft    Year   2014
22    159 947    No. 143    Amendment No. 20 Firm Aircraft    Year   2014
23    159948    No. 144    Amendment No. 20 Firm Aircraft    Year   2014
24    159 949    No. 145    Amendment No. 20 Firm Aircraft    Year   2014
25    159 956    No. 146    Amendment No. 20 Firm Aircraft    Year   2015
26    159 957    No. 147    Amendment No. 20 Firm Aircraft    Year   2015
27    159 958    No. 148    Amendment No. 20 Firm Aircraft    Year   2015
28    159 959    No. 149    Amendment No. 20 Firm Aircraft    Year   2015
29    159 929    No. 150    Amendment No. 16 Firm Aircraft    Year   2015
30    159 930    No. 151    Amendment No. 16 Firm Aircraft    Year   2015
31    159 931    No. 152    Amendment No. 16 Firm Aircraft    Year   2015
32    159 932    No. 153    Amendment No. 16 Firm Aircraft    Year   2015
33    159 933    No. 154    Amendment No. 16 Firm Aircraft    Year   2015
34    159 920    No. 155    Amendment No. 16 Firm Aircraft    Year   2015
35    159 911    No. 156    Amendment No. 16 Firm Aircraft    Year   2016
36    159 912    No. 157    Amendment No. 16 Firm Aircraft    Year   2016
37    159 917    No. 158    Amendment No. 16 Film Aircraft    Year   2016

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Ex. 1-1


 

    

CACId No.

  

Rank No.

  

Aircraft

   Delivery
38    159 918    No. 159    Amendment No. 16 Firm Aircraft    Year    2016
39    159 926    No. 160    Amendment No. 16 Firm Aircraft    Year    2016
40    159 927    No. 161    Amendment No. 16 Firm Aircraft    Year    2016
41    159 928    No. 162    Amendment No. 16 Firm Aircraft    Year    2016
42    159 952    No. 163    Amendment No. 20 Firm Aircraft    Year    2016
43    159 953    No. 164    Amendment No. 20 Firm Aircraft    Year    2016
44    159 934    No. 165    Amendment No. 16 Firm Aircraft    Year    2016
45    159 922    No. 166    Amendment No: 16 Firm Aircraft    Year    2017
46    159 954    No. 167    Amendment No. 20 Firm Aircraft    Year    2017
47    159 955    No. 168    Amendment No. 20 Firm Aircraft    Year    2017
48    159 921    No. 169    Amendment No. 16 Firm Aircraft    Year    2017
49    104 440    No. 170    Amendment No. 16 Firm Aircraft    Year    2017
50    104 442    No. 171    Amendment No. 16 Firm Aircraft    Year    2017
51    159 909    No. 172    Amendment No. 16 Firm Aircraft    Year    2017
52    159910    No. 173    Amendment No. 16 Firm Aircraft    Year    2017

UNQUOTE

 

Ex. 1-2

Exhibit 10.3(w)

IAE PROPRIETARY INFORMATION

 

LOGO

628 Hebron Avenue, Suite 400

Glastonbury, CT 06033 USA

November 8, 2011

Mr. Mark Powers

Senior Vice President and Treasurer

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, NY 11375

 

Subject: Side Letter No. 32 to the V2500 General Terms of Sale Agreement between JetBlue Airways Corporation and IAE International Aero Engines AG dated May 4, 1999.

Ladies and Gentlemen:

We refer to the General Terms of Sale Agreement dated May 4, 1999 between IAE International Aero Engines AG (“ IAE ”) and JetBlue Airways Corporation (“ JetBlue ”), as amended from time to time, such contract being hereinafter referred to as the “ Agreement ”.

Unless expressly stated to the contrary, and to the extent possible, capitalized terms used in this Side Letter Agreement No. 32 (“ Side Letter No. 32 ”) shall have the same meaning given to them in the Agreement. In the event of a conflict between the terms and provisions of this Side Letter No. 32 and those of the Agreement, this Side Letter No. 32 shall govern.

NOW, THEREFORE, the Parties hereby agree as follows:

 

1. Revision to Exhibit B-1

 

  1.1 The Parties hereby agree that Exhibit B-1 to the Agreement, Aircraft Delivery Schedules , is hereby deleted in its entirety and replaced by the revised delivery schedule attached as Appendix 1 hereto which captures the amendments as set forth in Clause 2 below.

 

2. Aircraft Re-Basing

 

  2.1. Firm Aircraft No. 122, with actual delivery date of [***] 2011, shall be [***].

 

  2.2. Firm Aircraft No. 122 shall receive [***].

 

  2.3. The [***] upon delivery and acceptance of Firm Aircraft No. 122 shall be [***] as set forth in Section D of Side Letter No. 25 to the Agreement, if applicable.

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


3. Miscellaneous

 

  3.1 This Side Letter No. 32 is not, and shall not be construed as, a waiver of either Party’s rights or remedies.

 

  3.2 This Side Letter No. 32 contains matters of a confidential and proprietary nature and is delivered on the express condition that its terms shall not be disclosed to any third party or reproduced in whole or in part for anyone other than the parties hereto without the other party’s prior written consent, unless otherwise stated herein.

 

  3.3 This Side Letter No. 32 constitutes a valid, legal, binding obligation. This Side Letter No. 32 shall be construed and interpreted in accordance with the laws of the State of Connecticut, United States of America with the exception of its conflict of law provisions.

 

  3.4 This Side Letter No. 32 may be executed in one or more counterparts, each of which when so executed and delivered shall be an original but shall constitute one and the same instrument.

Except as expressly amended by this Side Letter No. 32, all provisions of the Agreement (as amended from time to time by various side letters and amendments) remain in full force and effect.

 

Very truly yours,     Agreed to and accepted on behalf of
IAE International Aero Engines AG     JetBlue Airways Corporation

/s/ Debarshi Mandal

   

/s/ Mark D. Powers

Name     Name

Commercial Manager

   

CFO

Title     Title

11/10/11

   

11/10/11

Date     Date

 

Page 2 of 8


APPENDIX 1

Exhibit B-1

Aircraft Delivery Schedules

As of October 2011

 

 

Glossary Notes:

 

 

Delivered Aircraft are indicated by Italics typeface

 

 

Existing Firm Aircraft are indicated by normal typeface

 

 

Incremental Firm Aircraft are indicated by an asterisk (*)

 

 

2004 Incremental Aircraft, including all 2004 Incremental Aircraft and all Option Aircraft are indicated by bold typeface.

 

 

Applicable escalation formulae, indicated for the calculation of Fleet Introductory Assistance credits, are in accordance with Side Letter No. 13 and Side Letter No. 17 to the Agreement, as amended by Side Letter No. 25 to the Agreement.

 

 

 

Rank No.

  

Aircraft

   Contracted
Month
  Contracted
Year
  

Applicable Escalation

No. 1

   Firm Aircraft    [***]   2000    Formula I

No. 2

   Firm Aircraft    [***]   2000    Formula I

No. 3

   Firm Aircraft    [***]   2000    Formula I

No. 4

   Firm Aircraft    [***]   2000    Formula I

No. 5

   Firm Aircraft    [***]   2000    Formula I

No. 6

   Firm Aircraft    [***]   2000    Formula I

No. 7

   Firm Aircraft    [***]   2001    Formula I

No. 8

   Firm Aircraft    [***]   2001    Formula I

No. 9

   Firm Aircraft    [***]   2001    Formula I

No. 10

   Firm Aircraft    [***]   2001    Formula I

No. 11

   Firm Aircraft    [***]   2001    Formula I

No. 12

   Firm Aircraft    [***]   2001    Formula I

No. 13

   Firm Aircraft    [***]   2001    Formula I

No. 14

   Firm Aircraft    [***]   2002    Formula I

No. 15

   Firm Aircraft    [***]   2002    Formula I

No. 16

   Firm Aircraft    [***]   2002    Formula I

No. 17

   Firm Aircraft    [***]   2002    Formula I

No. 18

   Firm Aircraft    [***]   2002    Formula I

No. 19

   Firm Aircraft    [***]   2002    Formula I

No. 20

   Firm Aircraft    [***]   2002    Formula I

No. 21

   Firm Aircraft    [***]   2002    Formula I

No. 22

   Firm Aircraft    [***]   2002    Formula I

No. 23

   Firm Aircraft    [***]   2002    Formula I

No. 24

   Firm Aircraft    [***]   2002    Formula I

No. 25

   Firm Aircraft    [***]   2002    Formula I

No. 26

   Firm Aircraft    [***]   2002    Formula I

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 3 of 8


Rank No.

  

Aircraft

   Contracted
Month
  Contracted
Year
  

Applicable Escalation

 

No. 27

   Firm Aircraft    [ ***]   2002    Formula I  

No. 28

   Firm Aircraft    [***]   2002    Formula I  

No. 29

   Firm Aircraft    [***]   2002    Formula I  

No. 30

   Firm Aircraft    [***]   2003    Formula I  

No. 31

   Firm Aircraft    [***]   2003    Formula I  

No. 32

   Firm Aircraft    [***]   2003    Formula I  

No. 33

   Firm Aircraft    [***]   2003    Formula I  

No. 34

   Firm Aircraft    [***]   2003    Formula I  

No. 35

   Firm Aircraft    [***]   2003    Formula I  

No. 36

   Firm Aircraft    [***]   2003    Formula I  

No. 37

   Firm Aircraft    [***]   2003    Formula I  

No. 38

   Firm Aircraft    [***]   2003    Formula I  

No. 39

   Firm Aircraft    [***]   2003    Formula I  

No. 40

   Firm Aircraft    [***]   2003    Formula I  

No. 41

   Firm Aircraft    [***]   2003    Formula I  

No. 42

   Firm Aircraft    [***]   2003    Formula I  

No. 43

   Firm Aircraft    [***]   2003    Formula I  

No. 44

   Firm Aircraft    [***]   2003    Formula I  

No. 45

   Firm Aircraft    [***]   2004    Formula I  

No. 46

   Firm Aircraft    [***]   2004    Formula I  

No. 47

   Firm Aircraft    [***]   2004    Formula I  

No. 48

   Firm Aircraft    [***]   2004    Formula I  

No. 49

   Firm Aircraft    [***]   2004    Formula I  

No. 50

   Firm Aircraft    [***]   2004    Formula I  

No. 51

   Firm Aircraft    [***]   2004    Formula I  

No. 52

   Firm Aircraft    [***]   2004    Formula I  

No. 53

   Firm Aircraft    [***]   2004    Formula I  

No. 54

   Firm Aircraft    [***]   2004    Formula I  

No. 55

   Firm Aircraft    [***]   2004    Formula I     *   

No. 56

   Firm Aircraft    [***]   2004    Formula I  

No. 57

   Firm Aircraft    [***]   2004    Formula I  

No. 58

   Firm Aircraft    [***]   2004    Formula I  

No. 59

   Firm Aircraft    [***]   2004    Formula I     *   

No. 60

   Firm Aircraft    [***]   2005    Formula I  

No. 61

   Firm Aircraft    [***]   2005    Formula I  

No. 62

   Firm Aircraft    [***]   2005    Formula I     *   

No. 63

   Firm Aircraft    [***]   2005    Formula I  

No. 64

   Firm Aircraft    [***]   2005    Formula I  

No. 65

   Firm Aircraft    [***]   2005    Formula I  

No. 66

   Firm Aircraft    [***]   2005    Formula I  

No. 67

   Firm Aircraft    [***]   2005    Formula I     *   

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 4 of 8


Rank No.

  

Aircraft

   Contracted
Month
  Contracted
Year
  

Applicable Escalation

 

No. 68

   Firm Aircraft    [ ***]   2005    Formula I  

No. 69

   Firm Aircraft    [***]   2005    Formula I  

No. 70

   Firm Aircraft    [***]   2005    Formula I  

No. 71

   Firm Aircraft    [***]   2005    Formula I     *   

No. 72

   Firm Aircraft    [***]   2005    Formula I  

No. 73

   Firm Aircraft    [***]   2005    Formula I  

No. 74

   Firm Aircraft    [***]   2005    Formula I     *   

No. 75

   Firm Aircraft    [***]   2005    Formula I     *   

No. 76

   Firm Aircraft    [***]   2006    Formula II  

No. 77

   Firm Aircraft    [***]   2006    Formula I  

No. 78

   Firm Aircraft    [***]   2006    Formula I     *   

No. 79

   Firm Aircraft    [***]   2006    Formula I     *   

No. 80

   Firm Aircraft    [***]   2006    Formula I  

No. 81

   Firm Aircraft    [***]   2006    Formula I     *   

No. 82

   Firm Aircraft    [***]   2006    Formula I  

No. 83

   Firm Aircraft    [***]   2006    Formula I     *   

No. 84

   Firm Aircraft    [***]   2006    Formula I     *   

No. 85

   Firm Aircraft    [***]   2006    Formula I  

No. 86

   Firm Aircraft    [***]   2006    Formula I     *   

No. 87

   Firm Aircraft    [***]   2006    Formula I     *   

No. 88

   Firm Aircraft    [***]   2006    Formula I  

No. 89

   Firm Aircraft    [***]   2006    Formula I     *   

No. 90

   Firm Aircraft    [***]   2006    Formula I     *   

No. 91

   Firm Aircraft    [***]   2006    Formula II  

No. 92

   Firm Aircraft    [***]   2007    Formula I  

No. 93

   Firm Aircraft    [***]   2007    Formula I  

No. 94

   Firm Aircraft    [***]   2007    Formula II  

No. 95

   Firm Aircraft    [***]   2007    Formula I  

No. 96

   Firm Aircraft    [***]   2007    Formula I  

No. 97

   Firm Aircraft    [***]   2007    Formula I  

No. 98

   Firm Aircraft    [***]   2007    Formula I     *   

No. 99

   Firm Aircraft    [***]   2007    Formula I     *   

No. 100

   Firm Aircraft    [***]   2007    Formula I     *   

No. 101

   Firm Aircraft    [***]   2007    Formula I     *   

No. 102

   Firm Aircraft    [***]   2007    Formula I     *   

No. 103

   Firm Aircraft    [***]   2007    Formula I     *   

No. 104

   Firm Aircraft    [***]   2008    Formula I     *   

No. 105

   Firm Aircraft    [***]   2008    Formula I     *   

No. 106

   Firm Aircraft    [***]   2008    Formula I     *   

No. 107

   Firm Aircraft    [***]   2008    Formula I     *   

No. 108

   Firm Aircraft    [***]   2008    Formula I     *   

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 5 of 8


Rank No.

  

Aircraft

   Contracted
Month
   Contracted
Year
  

Applicable Escalation

 

No. 109

   Firm Aircraft    [***]    2008    Formula I     *   

No. 110

   Firm Aircraft    [***]    2008    Formula I     *   

No. 111

   Firm Aircraft    [***]    2008    Formula I     *   

No. 112

   Firm Aircraft    [***]    2008    Formula I     *   

No. 113

   Firm Aircraft    [***]    2008    Formula I     *   

No. 114

   Firm Aircraft    [***]    2008    Formula I     *   

No. 115

   Firm Aircraft    [***]    2008    Formula I     *   

No. 116

   Firm Aircraft    [***]    2009    Formula I     *   

No. 117

   Firm Aircraft    [***]    2009    Formula I     *   

No. 118

   Firm Aircraft    [***]    2009    Formula I     *   

No. 119

   Firm Aircraft    [***]    2010    Formula I     *   

No. 120

   Firm Aircraft    [***]    2010    Formula I     *   

No. 121

   Firm Aircraft    [***]    2010    Formula I     *   

No. 122

   Firm Aircraft    Year    2011    Formula II  

No. 123

   Firm Aircraft    Year    2011    Formula I     *   

No. 124

   Firm Aircraft    Year    2011    Formula I     *   

No. 125

   Firm Aircraft    Year    2011    Formula I     *   

No. 126

   Firm Aircraft    Year    2011    Formula I     *   

No. 127

   Firm Aircraft    Year    2012    Formula I     *   

No. 128

   Firm Aircraft    Year    2012    Formula I     *   

No. 129

   Firm Aircraft    Year    2012    Formula I     *   

No. 130

   Firm Aircraft    Year    2012    Formula I     *   

No. 131

   Firm Aircraft    Year    2012    Formula I     *   

No. 132

   Firm Aircraft    Year    2012    Formula I     *   

No. 133

   Firm Aircraft    Year    2012    Formula II  

No. 134

   Firm Aircraft    Year    2012    Formula II  

No. 135

   Firm Aircraft    Year    2012    Formula II  

No. 136

   Firm Aircraft    Year    2012    Formula II  

No. 137

   Firm Aircraft    Year    2012    Formula I     *   

No. 138

   Firm Aircraft    Year    2012    Formula I     *   

No. 139

   Firm Aircraft    Year    2012    Formula I     *   

No. 140

   Firm Aircraft    Year    2013    Formula I     *   

No. 141

   Firm Aircraft    Year    2013    Formula I     *   

No. 142

   Firm Aircraft    Year    2013    Formula I     *   

No. 143

   Firm Aircraft    Year    2013    Formula II  

No. 144

   Firm Aircraft    Year    2013    Formula II  

No. 145

   Firm Aircraft    Year    2013    Formula I     *   

No. 146

   Firm Aircraft    Year    2013    Formula II  

No. 147

   Firm Aircraft    Year    2013    Formula II  

No. 148

   Firm Aircraft    Year    2013    Formula II  

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 6 of 8


Rank No.

  

Aircraft

   Contracted
Month
   Contracted
Year
  

Applicable Escalation

 

No. 149

   Firm Aircraft    Year    2013    Formula II  

No. 150

   Firm Aircraft    Year    2013    Formula II  

No. 151

   Firm Aircraft    Year    2013    Formula II  

No. 152

   Firm Aircraft    Year    2013    Formula II  

No. 153

   Firm Aircraft    Year    2014    Formula I     *   

No. 154

   Firm Aircraft    Year    2014    Formula II  

No. 155

   Firm Aircraft    Year    2014    Formula II  

No. 156

   Firm Aircraft    Year    2014    Formula II  

No. 157

   Firm Aircraft    Year    2014    Formula II  

No. 158

   Firm Aircraft    Year    2014    Formula II  

No. 159

   Firm Aircraft    Year    2014    Formula II  

No. 160

   Firm Aircraft    Year    2014    Formula II  

No. 161

   Firm Aircraft    Year    2014    Formula II  

No. 162

   Firm Aircraft    Year    2014    Formula I     *   

No. 163

   Firm Aircraft    Year    2014    Formula II  

No. 164

   Firm Aircraft    Year    2014    Formula II  

No. 165

   Firm Aircraft    Year    2015    Formula II  

No. 166

   Firm Aircraft    Year    2015    Formula II  

No. 167

   Firm Aircraft    Year    2015    Formula II  

No. 168

   Firm Aircraft    Year    2015    Formula II  

No. 169

   Firm Aircraft    Year    2015    Formula I     *   

No. 170

   Firm Aircraft    Year    2015    Formula I     *   

No. 171

   Firm Aircraft    Year    2015    Formula I     *   

No. 172

   Firm Aircraft    Year    2015    Formula I     *   

No. 173

   Firm Aircraft    Year    2015    Formula I     *   

2004 Option Aircraft

 

Rank No.

  

Aircraft

   Month   

Applicable Escalation

   Year

No. 174

   Option Aircraft    [ ***]    Formula II    2011

No. 175

   Option Aircraft    [***]    Formula II    2011

No. 176

   Option Aircraft    [***]    Formula II    2011

No. 177

   Option Aircraft    [***]    Formula II    2012

No. 178

   Option Aircraft    [***]    Formula II    2012

No. 179

   Option Aircraft    [***]    Formula II    2012

No. 180

   Option Aircraft    [***]    Formula II    2012

No. 181

   Option Aircraft    [***]    Formula II    2013

No. 182

   Option Aircraft    [***]    Formula II    2013

No. 183

   Option Aircraft    [***]    Formula II    2013

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 7 of 8


 

Rank No.

  

Aircraft

   Month   

Applicable Escalation

   Year

No. 184

   Option Aircraft    [ ***]    Formula II    2013

No. 185

   Option Aircraft    [***]    Formula II    2013

No. 186

   Option Aircraft    [***]    Formula II    2013

No. 187

   Option Aircraft    [***]    Formula II    2013

No. 188

   Option Aircraft    [***]    Formula II    2014

No. 189

   Option Aircraft    [***]    Formula II    2014

No. 190

   Option Aircraft    [***]    Formula II    2014

No. 191

   Option Aircraft    [***]    Formula II    2014

No. 192

   Option Aircraft    [***]    Formula II    2015

No. 193

   Option Aircraft    [***]    Formula II    2015

No. 194

   Option Aircraft    [***]    Formula II    2015

No. 195

   Option Aircraft    [***]    Formula II    2015

Option Aircraft to be delivered after [***] are subject to IAE and Airbus SAS concurrence on extension of the current purchase agreement between the parties.

Leased Aircraft

 

Year

   Number   

Delivery Dates

1999

   1    1 [***]

2000

   3    1 [***], 1 [***], 1 [***]

2001

   4    1 [***], 2 [***], 1 [***]

2003

   1    1 [***]

2004

   1    1 [***]

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 8 of 8

Exhibit 10.3(x)

IAE PROPRIETARY INFORMATION

 

LOGO

628 Hebron Avenue, Suite 400

Glastonbury, CT 06033 USA

December 1, 2011

Mr. Mark Powers

Senior Vice President and Treasurer

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, NY 11375

 

Subject:    Side Letter No. 33 to the V2500 General Terms of Sale Agreement between JetBlue Airways Corporation (JetBlue) and IAE International Aero Engines AG (IAE) dated May 4, 1999

Ladies and Gentlemen:

We refer to the General Terms of Sale Agreement dated May 4, 1999 between IAE International Aero Engines AG (“ IAE ”) and JetBlue Airways Corporation (“ JetBlue ”), as amended from time to time, such contract being hereinafter referred to as the “ Agreement ”.

IAE is pleased to submit this Side Letter No. 33 (“ SL33 ”) to JetBlue relative to JetBlue’s purchase of six (6) new V2527-A5 spare Engines (the “ 2011 Incremental Spare Engines ”) to be delivered in accordance with the schedule set forth in Exhibit A to this SL33.

Unless expressly stated to the contrary, and to the extent possible, capitalized terms used in this SL33 shall have the same meaning given to them in the Agreement. In the event of a conflict between the terms and provisions of this SL 33 and those of the Agreement, this SL33 shall govern.

NOW, THEREFORE, the Parties hereby agree as follows:

 

1. Purchase of Six (6) Incremental Spare Engines

1.1. IAE agrees to sell and JetBlue agrees to purchase the 2011 Incremental Spare Engines to support the current JetBlue fleet to be delivered Ex Works IAE point of manufacture (Incoterms 2000) in accordance with the delivery schedule in Exhibit A. The unit base price for each 2011 Incremental Spare Engine (“ Unit Base Price ”) is as follows:

 

Engine Model   

Unit Base Price

(Jan-11$)

V2527-A5

   US [***]

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


IAE PROPRIETARY INFORMATION

 

Pricing for the 2011 Incremental Spare Engines shall be escalated from the base month of January 2011 (“Base Month”) to the date of delivery, in accordance with the delivery schedule set forth in Exhibit A and the IAE Escalation Formula set forth in Exhibit B to this SL 33.

1.2 The 2011 Incremental Spare Engines shall herein refer to the V2500-A5 Engine in a spareable engine configuration excluding Buyer Furnished Equipment, Engine Build-Up items, Quick Engine Change items, Nacelle items, and accessories.

 

2. [***]

2.1 In consideration of JetBlue’s agreement to purchase the 2011 Incremental Spare Engines in accordance with Section 1.1 above, [***].

2.2 Each such [***]. JetBlue agrees to provide IAE with written notice confirming acceptance of the corresponding 2011 Incremental Spare Engine promptly after acceptance.

2.3 [***].

2.4 In addition to the foregoing, [***].

2.5 [***]. Alternatively, upon written notice to IAE at least thirty (30) days prior to delivery of each applicable 2011 Incremental Spare Engine, IAE shall [***].

2.6 JetBlue may purchase one (1) storage bag and one (1) transportation stand from IAE for any of the six (6) 2011 Incremental Spare Engine delivery [***]. For reference purposes only, the [***] price for each storage bag and engine transportation stand totals [***]. JetBlue represents that it will be properly provisioned in storage bags and transportation stands sufficient to support the purchase and delivery of the 2011 Incremental Spare Engines in accordance with the delivery schedule in Exhibit A.

2.7 JetBlue agrees that for [***], JetBlue will ensure that the 2011 Incremental Spare Engine is maintained in an engine configuration consistent with normal industry operation. If prior to the accumulation of [***], JetBlue proposes to permanently break-up, disassemble, or retire any part or portion of the 2011 Incremental Spare Engine, JetBlue shall provide ninety (90) days prior written notice of the same to IAE, in which time [***]. Prior to the accumulation of [***], JetBlue may sell or otherwise transfer the 2011 Incremental Spare Engine to a third party provided that, except with respect to financing of any 2011 Incremental Spare Engine (i) JetBlue obtains the written consent of IAE, which consent shall not be unreasonably delayed or withheld, and (ii) each of JetBlue and any subsequent transferee applies the restrictions of this Section 2.7 to the transferee in the applicable transfer agreement and names IAE as the intended third-party beneficiary of such provision.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

Page 2 of 8


IAE PROPRIETARY INFORMATION

 

3. Payment

3.1 Immediately prior to the delivery of each of the 2011 Incremental Spare Engines, JetBlue shall pay to IAE the escalated purchase price of such 2011 Incremental Spare Engine, plus the purchase price of the Engine storage bag and transportation stand.

3.2 JetBlue shall pay the full amount of payments falling due under this SL33, without any withholding or deduction whatsoever.

3.3 All payments under this SL33 shall be made by wire transfer and shall be deposited not later than the due date of payment with:

[***]

 

Acc. No.:    [***]
ABA No.:    [***]
Swift Code:    [***]
CHIPS #:    [***]

or as otherwise notified from time to time by IAE.

3.4 “Payment” shall only be deemed to have been made to the extent cleared or good value funds are received in the numbered IAE bank account specified in Section 2.3 above.

3.5 If JetBlue fails to make any payment pursuant to this Section 2 on or before the date when such payment is due, then, without prejudice to any of IAE’s other rights, IAE will (a) be entitled [***] and (b) have the right (but not the obligation) [***].

 

4. IAE Right of First Refusal

4.1 In exchange for the pricing terms [***] associated with the 2011 Incremental Spare Engines as set forth in Section 1 above, JetBlue agrees to [***].

4.2 The [***] shall be provided to IAE in writing from JetBlue (“Notice”), and such Notice shall include, at a minimum, [***]. IAE shall respond, in writing, to such Notice no later than fifteen (15) business days from the date IAE receives the Notice, which shall not be any earlier than 1 January 2012.

4.3 Notwithstanding the foregoing, nothing herein shall constitute or be construed as an obligation for IAE to [***].

 

5. Miscellaneous

5.1. This SL33 incorporates by reference and makes applicable to the 2011 Incremental Spare Engines those provisions set forth in Clauses 4.1, 4.2.1, 4.6, 4.7, 6.1, 6.2, 6.4, 6.5, 6.9, 6.10 and 6.11. For clarity, nothing herein shall expand, in any manner whatsoever, any existing Warranties or Guarantees provided to JetBlue under the Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

Page 3 of 8


IAE PROPRIETARY INFORMATION

 

5.2. Entire Agreement; Conflicts. This SL33 constitutes the sole and entire agreement between JetBlue and IAE in relation to the matters set forth herein and shall supersede all previous agreements between JetBlue and IAE, both oral and in writing, as of the date hereof. In the event of any conflict between the Agreement and this SL33, the terms of this SL33 shall control.

5.3. Amendment. This SL33 shall not be amended, changed or modified in any way other than by agreement in writing, signed by JetBlue and IAE, which is expressly stated to amend this SL33.

5.4. Proprietary Information. This SL33 contains matters of a confidential and proprietary nature and each of JetBlue and IAE agrees that it shall not disclose the contents of this SL33 in whole or in part to a third party without the prior written consent of the other party.

5.5. Assignment. Neither JetBlue nor IAE may assign any of its rights or obligations hereunder without the written consent of the other party. Any assignment made in violation of this Section 5.5 shall be null and void.

 

Page 4 of 8


IAE PROPRIETARY INFORMATION

 

Except as expressly amended by this SL33, all provisions of the Agreement remain in full force and effect. The parties hereto have caused this SL33 to be signed on their behalf by the hands of their duly authorized representatives.

 

Agreed to and accepted on behalf of:

IAE International Aero Engines AG

 

Agreed to and accepted on behalf of:

JetBlue Airways Corporation

By:  

/s/ Marc Pierpoint

  By:  

/s/ Mark D. Powers

Name:  

Marc Pierpoint

  Name:  

Mark D. Powers

Title:  

Treasurer

  Title:  

CFO

Date:  

1st December 2011

  Date:  

12/1/11

 

Page 5 of 8


IAE PROPRIETARY INFORMATION

 

Exhibit A

2011 Incremental Spare Engine Delivery Schedules

 

ESN

  

No.

  

Model

  

Delivery Date

V16127

   1    V2527    On or before 23 [***] 2011

V16133

   2    V2527    On or before 23 [***] 2011

V16135

   3    V2527    On or before 23 [***] 2011

V16141

   4    V2527    On or before 23 [***] 2011

TBD

   5    V2527    On or before 30 [***] 2012

TBD

   6    V2527    On or before 30 [***] 2012

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

Page 6 of 8


IAE PROPRIETARY INFORMATION

 

IAE Escalation Formula

 

1. Any unit base price or other sum expressed to be subject to escalation from a base month to month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula:

 

Pi    =    (Pb+F) x CPI, where:
Pi    =    the invoiced purchase price or escalated sum rounded to the nearest U.S. Dollar
Pb    =    unit base price or other sum
F    =    [***] (N) (Pb), rounded to the nearest U.S. Dollar
N    =    calendar year of scheduled engine delivery or other date of determination, minus the base year
CPI    =    [***](L) + [***](M)
L    =    Labor Ratio defined below
M    =    Material Ratio defined below

Base Month shall mean the base month specified for engine prices and related credits in this Proposal. The IAE Composite Price Index (CPI) is the sum of [***] percent of the Labor Ratio and [***] percent of the Material Ratio, with the sum rounded to the nearest ten thousandth. The quarterly value published for the Employment Cost Index will be deemed to apply to each month of the quarter.

The Labor Ratio is the “Employment Cost Index (ECI) Wages and Salaries for Aircraft Manufacturing (NAICS Code 336411), CIU2023211000000I” as published quarterly by the Bureau of Labor Statistics, U.S. Department of Labor (the “Bureau”) for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the month of scheduled delivery for each engine/equipment; divided by the value of “Employment Cost Index (ECI) Wages and Salaries for Aircraft Manufacturing (NAICS Code 336411), CIU2023211000000I” for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the Base Month. To be clear the quarterly value of CIU2023211000000I will apply to each month of a given quarter.

The Material Ratio is the “Producer Price Index, Industrial Commodities, WPU03thru15”, as published monthly by the Bureau of Labor Statistics, U.S. Department of Labor, for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the month of scheduled delivery for each engine/equipment; divided by the value for the “Producer Price Index, Industrial Commodities, WPU03thru15” for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the Base Month.

The value of the factors [***](L) and [***](M) shall be determined to the nearest fourth decimal place. Thus if the fifth decimal place is five or more, the fourth decimal place shall be raised to the next higher number. For a given month, the escalation shall be computed by using the applicable Index value, which the Bureau has published as of the time of delivery or other date of determination.

 

2. If the U.S. Department of Labor changes the base year for determination of the Index values as defined above, such rebased values will be incorporated in the escalation calculation.

 

3.

If the U.S. Department of Labor ceases to publish or replaces an index or revises the methodology used for the determination of the index values to be used to determine the CPI or, for any reason, has not released values needed to determine the CPI, IAE, in its sole discretion, shall select a substitute for such index or values from data published by the Bureau or otherwise make revisions to the

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

Page 7 of 8


IAE PROPRIETARY INFORMATION

 

  escalation formula such that the escalation will as closely as possible approximate the result that would have been attained by continuing the use of the original escalation formula and index values as they may have fluctuated during the applicable period.

 

4. The invoiced purchase price or final escalated sum, which in no event shall be less than the unit base price, shall be the final price or escalated sum.

 

Page 8 of 8

Exhibit 10.17(k)

AMENDMENT No. 11 TO PURCHASE AGREEMENT DCT-025/2003

This Amendment No. 11 to Purchase Agreement DCT-025/2003, dated as of October 20, 2011 (“Amendment 11”) relates to the Purchase Agreement DCT-025/2003 between Embraer S.A. (formerly known as Embraer - Empresa Brasileira de Aeronáutica S.A.) (“Embraer”) and JetBlue Airways Corporation (“Buyer”) dated June 9, 2003 as amended from time to time (collectively referred to herein as “Purchase Agreement”). This Amendment 11 is executed between Embraer and Buyer, collectively referred to herein as the “Parties”.

All terms defined in the Purchase Agreement shall have the same meaning when used herein and in case of any conflict between this Amendment 11 and the Purchase Agreement, this Amendment 11 shall control.

WHEREAS:

 

1) Buyer and Embraer have agreed to terminate eleven (11) Firm Aircraft;

 

2) The parties desire to implement of certain changes to the Aircraft configuration which cause a change in the Aircraft Basic Price;

 

3) Buyer has elected to exercise its right of termination, and Embraer has agreed to cancel the delivery of two (2) Firm Aircraft.

Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:

 

1. DELIVERY

1.1 Article 2.1 of the Purchase Agreement shall be deleted and replaced as follows:

“2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of 89 (eighty nine) newly manufactured Aircraft.”

1.2 The Aircraft schedule delivery table in Article 5.1 of the Purchase Agreement shall be deleted and replaced as follows:

 

Aircraft
#

   Delivery
Month**
   Aircraft
#
   Delivery
Month**
   Aircraft
#
   Delivery
Month**
   Aircraft
#
   Delivery
Month**
1    [***]/05    23    [***]/06    45    [***]/10    67    [***]/14
2    [***]/05    24    [***]/07    46    [***]/10    68    [***]/14
3    [***]/05    25    [***]/07    47    [***]/10    69    [***]/14
4    [***]/05    26    [***]/07    48    [***]/10    70    [***]/15
5    [***]/05    27    [***]/07    49    [***]/11    71    [***]/15

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 11 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 1 of 5


AMENDMENT No. 11 TO PURCHASE AGREEMENT DCT-025/2003

 

    6    [ ***]/05    28    [***]/07    50    [***]/11    72    [***]/15
    7    [***]/05    29    [***]/07    51    [***]/11    73    [***]/15
    8    [***]/05    30    [***]/07    52    [***]/11    74    [***]/15
    9    [***]/06    31    [***]/08    53    [***]/11    75    [***]/15
    10    [***]/06    32    [***]/08    54    [***]/12    76    [***]/15
    11    [***]/06    33    [***]/08    55    [***]/12    77    [***]/16
    12    [***]/06    34    [***]/08    56    [***]/12    78    [***]/16
    13    [***]/06    35    [***]/08    57    [***]/12    79    [***]/16
    14    [***]/06    36    [***]/08    58    [***]/13    80    [***]/16
    15    [***]/06    37    [***]/09    59    [***]/13    81    [***]/16
    16    [***]/06    38    [***]/09    60    [***]/13    82    [***]/16
    17    [***]/06    39    [***]/09    61    [***]/13    83    [***]/16
    18    [***]/06    40(*)    [***]/09    62    [***]/13    84    [***]/16
    19    [***]/06    41(*)    [***]/09    63    [***]/14    85    [***]/17
    20    [***]/06    42    [***]/09    64    [***]/14    86    [***]/17
    21    [***]/06    43    [***]/09    65    [***]/14    87    [***]/17
    22    [***]/06    44(*)    [***]/09    66    [***]/14    88    [***]/17
                  89    [***]/17

[***]

(**) Scheduled Delivery Months shall be deemed to be the Contractual Delivery Dates as defined in Article 1.10 of this Agreement.

 

2. CHANGE IN THE AIRCRAFT CONFIGURATION

2.1 New [***]

Firm Aircraft #[***] shall be delivered with [***]. There will be [***] due to this change. The Basic Price for the affected Aircraft shall be [***] by US$ [***] ([***] United States dollars) [***].

2.2 [***]

Firm Aircraft #[***] shall be delivered with [***]. There will be [***] as a result of this modification. The Basic Price for the affected Aircraft shall be [***] by US$ [***] ([***] United States dollars) [***].

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 11 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 2 of 5


AMENDMENT No. 11 TO PURCHASE AGREEMENT DCT-025/2003

 

2.3 New [***]

Firm Aircraft #[***] shall be delivered with [***]. There will be [***] as a result of this modification. The Basic Price for the affected Aircraft shall be [***] by US$ [***]([***] United States dollars) [***].

 

3. AIRCRAFT PRICES

3.1 Aircraft Basic Price for Firm Aircraft: Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement shall be deleted and replaced as follows:

3.2 Buyer agrees to pay Embraer in the United States dollars, per unit Aircraft Basic Price as indicated in the table below:

 

Aircraft #

  

Basic Price ([***])

1 to 3

   US$ [***]

4

   US$ [***]

7

   US$ [***]

5, 6 and 8 to 12

   US$ [***]

13 to 24

   US$ [***]

25

   US$ [***]

26

   US$[***]

27

   US$ [***]

28 to 30

   US$ [***]

31 to 34

   US$ [***]

35 to 39, 42 and 43

   US$ [***]

Exercised Option [***]

   US$ [***]

45 to 47

   US$ [***]

48 to 50

   US$ [***]

51 to 53

   US$ [***]

54

   US$ [***]

55 to 89

   US$ [***]

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 11 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 3 of 5


AMENDMENT No. 11 TO PURCHASE AGREEMENT DCT-025/2003

 

3.3 Aircraft price for Option Aircraft: Due to the changes in the Aircraft configuration, Article 21.1 of the Purchase Agreement shall be deleted and replaced as follows:

21.1 The unit basic price of the Option Aircraft (the “Option Aircraft Basic Price”) is indicated in the table below, provided that the Option Aircraft is in the configuration described in Attachment “A”, otherwise adjustments shall be done for any additions and/or deletions of equipment and/or provisioning as may be agreed to by Buyer and Embraer from time to time.

 

Option Aircraft #

  

Option Aircraft Basic Price ([***])

All    US$ [***]

All other terms and conditions of the Purchase Agreement, which are not specifically amended by this Amendment 11, shall remain in full force and effect without any change.

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 11 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 4 of 5


AMENDMENT No. 11 TO PURCHASE AGREEMENT DCT-025/2003

 

IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 11 to the Purchase Agreement to be effective as of the date first written above.

 

Embraer S.A.   JetBlue Airways Corporation
By   :  

/s/ Artur Coutinho

    By   :  

/s/ Mark D. Powers

Name   :  

Artur Coutinho

    Name   :  

Mark Powers

Title   :  

COO – Chief Operating Officer

    Title   :  

CFO

By   :  

/s/ Eduardo Munhós de Campos

       
Name   :  

Eduardo Munhós de Campos

       
Title   :  

Vice President, Latin America

       
   

Airline Market

       
Date   :  

10/20/2011

    Date   :  

10/20/2011

Place   :  

São José dos Campos

    Place   :  

New York

Witness:    

/s/ Sandra Boelter de Bastos

    Witness:    

/s/ Laura Kong

Name:    

Sandra Boelter de Bastos

    Name:    

Laura Kong

 

Amendment No. 11 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 5 of 5

Exhibit 10.17(l)

AMENDMENT No. 12 TO PURCHASE AGREEMENT DCT-025/2003

This Amendment No. 12 to Purchase Agreement DCT-025/2003, dated as of October 25th, 2011 (“Amendment 12”) relates to the Purchase Agreement DCT-025/2003 between Embraer S.A. (formerly known as Embraer - Empresa Brasileira de Aeronáutica S.A.) (“Embraer”) and JetBlue Airways Corporation (“Buyer”) dated June 9, 2003 as amended from time to time (collectively referred to herein as “Purchase Agreement”). This Amendment 12 is executed between Embraer and Buyer, collectively referred to herein as the “Parties”.

All terms defined in the Purchase Agreement shall have the same meaning when used herein and in case of any conflict between this Amendment 12 and the Purchase Agreement, this Amendment 12 shall control.

WHEREAS:

 

1) Buyer and Embraer have agreed to postpone deliveries of three (3) Firm Aircraft from 2013 to 2018 and four (4) Firm Aircraft from 2014 to 2018 (the “Postponed Aircraft”) under certain terms and conditions contained herein; and

 

2) Buyer has elected to exercise its right of termination, and Embraer has agreed to cancel the delivery of one (1) Firm Aircraft.

Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:

 

1. DELIVERY

1.1 Article 2.1 of the Purchase Agreement shall be deleted and replaced as follows:

“2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of 88 (eighty-eight) newly manufactured Aircraft.”

1.2 The Aircraft schedule delivery table in Article 5.1 of the Purchase Agreement shall be deleted and replaced as follows:

 

Aircraft
#

   Delivery
Month**
   Aircraft
#
   Delivery
Month**
   Aircraft
#
   Delivery
Month**
   Aircraft
#
   Delivery
Month**
1    [ ***]/05    23    [***]/06    45    [***]/10    67    [***]/15
2    [***]/05    24    [***]/07    46    [***]/10    68    [***]/15
3    [***]/05    25    [***]/07    47    [***]/10    69    [***]/16
4    [***]/05    26    [***]/07    48    [***]/10    70    [***]/16
5    [***]/05    27    [***]/07    49    [***]/11    71    [***]/16

 

[ ***]

Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 12 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 1 of 3


Exhibit 10.17(l)

AMENDMENT No. 12 TO PURCHASE AGREEMENT DCT-025/2003

 

    6    [***]/05    28    [***]/07    50    [***]/11    72    [***]/16
    7    [***]/05    29    [***]/07    51    [***]/11    73    [***]/16
    8    [***]/05    30    [***]/07    52    [***]/11    74    [***]/16
    9    [***]/06    31    [***]/08    53    [***]/11    75    [***]/16
    10    [***]/06    32    [***]/08    54    [***]/12    76    [***]/16
    11    [***]/06    33    [***]/08    55    [***]/12    77    [***]/17
    12    [***]/06    34    [***]/08    56    [***]/12    78    [***]/17
    13    [***]/06    35    [***]/08    57    [***]/12    79    [***]/17
    14    [***]/06    36    [***]/08    58    [***]/13    80    [***]/17
    15    [***]/06    37    [***]/09    59    [***]/13    81    [***]/17
    16    [***]/06    38    [***]/09    60    [***]/14    82 (***)    [***]/18
    17    [***]/06    39    [***]/09    61    [***]/14    83 (***)    [***]/18
    18    [***]/06    40[***]    [***]/09    62    [***]/15    84 (***)    [***]/18
    19    [***]/06    41[***]    [***]/09    63    [***]/15    85 (***)    [***]/18
    20    [***]/06    42    [***]/09    64    [***]/15    86 (***)    [***]/18
    21    [***]/06    43    [***]/09    65    [***]/15    87 (***)    [***]/18
    22    [***]/06    44[***]    [***]/09    66    [***]/15    88 (***)    [***]/18

 

[***]
(**) Scheduled Delivery Months shall be deemed to be the Contractual Delivery Dates as defined in Article 1.10 of this Agreement.
(***) Postponed Aircraft

 

2. [***]

 

  2.1 In the event Embraer [***], Embraer shall [***].

 

  2.2 Upon [***]. If Buyer [***] Buyer shall [***].

 

  2.3 If Buyer, [***].

 

  2.4 The Parties agree to [***] as provided for in [***], and [***].

All other terms and conditions of the Purchase Agreement, which are not specifically amended by this Amendment 12, shall remain in full force and effect without any change.

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Amendment No. 12 to Purchase Agreement DCT-025/2003

COM0176-11

  Page 2 of 3


AMENDMENT No. 12 TO PURCHASE AGREEMENT DCT-025/2003

 

IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 12 to the Purchase Agreement to be effective as of the date first written above.

 

Embraer S.A.   JetBlue Airways Corporation
By   :  

/s/ Eduardo Munhós de Campos

    By   :  

/s/ Mark D. Powers

Name   :  

Eduardo Munhós de Campos

    Name   :  

Mark D. Powers

Title   :  

Vice President, Latin America

    Title   :  

Chief Financial Officer

   

Airline Market

       
By   :  

/s/ José Luís D’Avilar Molina

       
Name   :  

José Luís D’Avilar Molina

       
Title   :  

Vice President, Contracts

       
   

Airline Market

       
Date:    

October 25, 2011

    Date:    

October 25, 2011

Place:    

São José dos Campos

    Place:    

Forest Hills, NY

Witness:    

/s/ Sandra Boeller de Boslos

    Witness:    

/s/ Ursula Hurley

Name:    

Sandra Boeller de Boslos

    Name:    

Ursula Hurley

 

Amendment No. 12 to Purchase Agreement DCT-025/2003

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  Page 3 of 3

EXHIBIT 10.33

A I R B U S  A3 2 0  F A M I L Y

P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S. A. S.

as Seller

A N D

J E T B L U E  A I R W A Y S  C O R P O R A T I O N

as Buyer


C O N T E N T S

 

CLAUSES    TITLES       

0

  

DEFINITIONS AND INTERPRETATION

     1   

1

  

SALE AND PURCHASE

     8   

2

  

SPECIFICATION

     9   

3

  

PRICES

     12   

4

  

PRICE REVISION

     17   

5

  

PAYMENTS

     18   

6

  

MANUFACTURE PROCEDURE - INSPECTION

     23   

7

  

CERTIFICATION

     24   

8

  

BUYER’S TECHNICAL ACCEPTANCE

     26   

9

  

DELIVERY

     28   

10

  

EXCUSABLE DELAY

     30   

11

  

INEXCUSABLE DELAY

     33   

12

  

WARRANTIES AND SERVICE LIFE POLICY

     35   

13

  

PATENT AND COPYRIGHT INDEMNITY

     52   

14

  

TECHNICAL DATA AND SOFTWARE SERVICES

     55   

15

  

SELLER REPRESENTATIVES SERVICES

     63   

16

  

TRAINING SUPPORT AND SERVICES

     66   

17

  

EQUIPMENT SUPPLIER PRODUCT SUPPORT

     77   

18

  

BUYER FURNISHED EQUIPMENT

     79   

19

  

INDEMNIFICATION AND INSURANCE

     84   

20

  

TERMINATION

     87   

21

  

ASSIGNMENTS AND TRANSFERS

     92   

22

  

MISCELLANEOUS PROVISIONS

     94   

 

PA - i


C O N T E N T S

 

EXHIBITS    TITLES

Exhibit A1

  

A320 STANDARD SPECIFICATION

Exhibit A2

  

A321 STANDARD SPECIFICATION

Exhibit B1

  

FORM OF SPECIFICATION CHANGE NOTICE

Exhibit B2

  

FORM OF MANUFACTURER SPECIFICATION CHANGE NOTICE

Exhibit B3

  

SCN List A320 Backlog Aircraft (excluding Group 1 A320 Aircraft)

Exhibit B4

  

SCN List A320 NEO Aircraft

Exhibit B5

  

SCN List A321 Backlog Aircraft

Exhibit B6

  

SCN List Group 1 A320 Aircraft

Exhibit C

  

PART 1 SELLER PRICE REVISION FORMULA

  

PART 2 CFM INTERNATIONAL PRICE REVISION FORMULA

  

PART 3 INTERNATIONAL AERO ENGINES PRICE REVISION FORMULA

  

PART 4 PRATT AND WHITNEY PRICE REVISION FORMULA

Exhibit D

  

FORM OF CERTIFICATE OF ACCEPTANCE

Exhibit E

  

FORM OF BILL OF SALE

Exhibit F

  

SERVICE LIFE POLICY – LIST OF ITEMS

Exhibit G

  

TECHNICAL DATA INDEX

Exhibit H

  

MATERIAL SUPPLY AND SERVICES

 

PA - ii


A320 FAMILY PURCHASE AGREEMENT

This A320 Family Purchase Agreement (this “Agreement”) is made as of October 19, 2011.

BETWEEN:

AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the “Seller”),

and

JetBlue Airways Corporation a corporation organized under the laws of Delaware having its principal corporate offices at 118-29 Queens Boulevard, Forest Hills, New York 11375, United States of America (the “Buyer”).

WHEREAS subject to the terms and conditions of this Agreement, the Seller desires to sell the Aircraft to the Buyer and the Buyer desires to purchase the Aircraft from the Seller.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

PA - iii


0 DEFINITIONS AND INTERPRETATION

 

0.1 In addition to words and terms elsewhere defined in this Agreement, the initially capitalized words and terms used in this Agreement shall have the meaning set out below.

A320 Aircraft    – an Airbus A320-200 model aircraft firmly ordered under this Agreement, including the A320 Airframe, the A320 Propulsion System, and any part, component, furnishing or equipment installed on the A320 Aircraft on Delivery.

A320 Airframe   - any A320 Aircraft, excluding A320 Propulsions System therefor.

A320 Backlog Aircraft – any or all of the twenty-two (22), of the fifty-two (52) A320-200 model aircraft originally to be sold by the Seller and purchased by the Buyer pursuant to the Original Agreement, as of the date hereof to be sold by the Seller and purchased by the Buyer pursuant to this agreement, as the case may be, together with all components, equipment, parts and accessories installed in or on such aircraft and the relevant A320 Propulsion System installed thereon.

A320 Backlog Airframe   - any A320 Backlog Aircraft, excluding A320 Propulsions System therefor.

A320 Family Aircraft – as defined in Clause 2.1.2.1.

A320 Family Base Period – as defined in Clause 3.1.2.

A320 NEO Aircraft – any and all of the forty (40) firmly ordered A320-200 model aircraft incorporating the New Engine Option to be sold by the Seller and purchased by the Buyer pursuant to this Agreement, including A320 NEO Airframe and all components, equipment, parts and accessories installed in or on such aircraft and the applicable A320 NEO Propulsion System installed thereon upon Delivery.

A320 NEO Airframe – any A320 NEO Aircraft, excluding the A320 NEO Propulsion System therefor.

A320 NEO Propulsion System – as defined in Clause 2.3.2.

A320 Propulsion System – as defined in Clause 2.3.1.

A320 Standard Specification – the A320 standard specification document number D.000.02000 Issue 8 dated June 20, 2011, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed hereto as Exhibit A1

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 1 of 104


A321 Aircraft – an Airbus A321-200 model aircraft firmly ordered under this Agreement, including the A321 Airframe, the A321 Propulsion System, and any part, component, furnishing or equipment installed on the A321 Aircraft on Delivery.

A321 Airframe – any A321 Aircraft, excluding the A321 Propulsion System therefor.

A321 Backlog Aircraft – any or all of the remaining thirty (30), of the fifty-two (52) A320-200 model aircraft originally to be sold by the Seller and purchased by the Buyer pursuant to the Original Agreement, as of the date hereof to be sold by the Seller and purchased by the Buyer pursuant to this Agreement as A321-200 model aircraft, together with all components, equipment, parts and accessories installed in or on such aircraft and the relevant A321 Propulsion System installed thereon.

A321 Backlog Airframe   - any A321 Backlog Aircraft, excluding A321 Propulsions System therefor.

A321 NEO Airframe – any A321 NEO Aircraft, excluding the A321 NEO Propulsion System therefor.

A321 Propulsion System – as defined in Clause 2.3.3.

A321 Standard Specification – the A321 standard specification document number E.000.02000, Issue 5 dated June 20, 2011, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed hereto as Exhibit A-1.

AACS – Airbus Americas Customer Services, Inc., a corporation organized and existing under the laws of the state of Delaware, having its registered office located at 198 Van Buren Street, Suite 300, Herndon, Virginia 20170, or any successor thereto.

AET – Airbus Equivalent Thrust.

Affiliate - with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such person or entity.

AirbusWorld - corresponds to the Seller’s customer portal as further defined in Clause 14.10.1.

Aircraft – individually or collectively, the Group 1 A320 Aircraft, the A320 Backlog Aircraft, the A320 NEO Aircraft and the A321 Backlog Aircraft, as applicable.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 2 of 104


Aircraft Training Services - any flight support services including but not limited to any and all training courses, flight training, flight assistance, line training, line assistance and more generally all flights of any kind performed by the Seller, its agents, employees or subcontractors, and maintenance support, maintenance training (including Practical Training), training support of any kind performed on aircraft and provided to the Buyer pursuant to this Agreement.

Airframe   - any Aircraft excluding the Propulsion System therefor.

Aviation Authority - when used in respect of any jurisdiction the government entity, which under the laws of such jurisdiction has control over civil aviation or the registration, airworthiness or operation of aircraft in such jurisdiction.

Backlog Aircraft – the A320 Backlog Aircraft and the A321 Backlog Aircraft.

Balance of Final Price as defined in Clause 5.4.1.

Base Price – for any Aircraft, as defined in Clause 3.1

Base Price of the Aircraft – as defined in Clause 3.1.

Base Price of the Airframe – the Base Price of the Group 1 A320 Airframe, the Base Price of the A320 Backlog Airframe, the Base Price of the A320 NEO Airframe, the Base Price of the A321 Backlog Airframe, as applicable.

Base Price of the A320 Backlog Airframe – as defined in Clause 3.1.1.

Base Price of the A320 NEO Airframe – as defined in Clause 3.1.3.

Base Price of the A321 Backlog Airframe – as defined in Clause 3.1.5.

Base Price of CFM LEAP X-1A26 Propulsion Systems – as defined in Clause 3.2.2.

Base Price of IAE V2527-A5 Propulsion Systems – as defined in Clause 3.2.1.

Base Price of IAE V2533-A5 Propulsion Systems – as defined in Clause 3.2.4.

Base Price of PW1127G Propulsion Systems – as defined in Clause 3.2.3.

Bill of Sale - as defined in Clause 9.2.2.

Business Day - a day, other than a Saturday or Sunday, on which business of the kind contemplated by this Agreement is carried on in France, in Germany and in the Buyer’s country or, where used in relation to a payment, which is a day on which banks are open for business in France, in Germany, in the Buyer’s country and in New York, as appropriate.

Buyer Furnished Equipment or BFE - as defined in Clause 18.1.1.1.

Certificate of Acceptance as defined in Clause 8.3.

 

Page 3 of 104


CFM – CFM International.

CFM LEAP X Propulsion Systems – CFM LEAP X-1A26 Propulsion System.

CFM Propulsion Systems Reference Price – as defined in Part 2 of Exhibit C to the Agreement.

Commercial and Industrial Constraints – [***]

Contractual Definition Freeze or CDF – as defined in Clause 2.4.2.

Customization Milestones Chart – as defined in Clause 2.4.1.

DAP – as defined in Clause 14.4.3.2.

Declaration of Design and Performance or DDP - the documentation provided by an equipment manufacturer guaranteeing that the corresponding equipment meets the requirements of the Specification, the interface documentation as well as all the relevant certification requirements.

Delivery - the transfer of title to the Aircraft from the Seller to the Buyer in accordance with Clause 9.

Delivery Date - the date on which Delivery shall occur.

Delivery Location - the facilities of the Seller at the location of final assembly of the Aircraft.

Excusable Delay – as defined in Clause 10.1.

Export Airworthiness Certificate and/or Statement of Conformity - an export certificate of airworthiness and/or a statement of conformity issued by the Aviation Authority of the Delivery Location, as applicable.

Final Price - as defined in Clause 3.3.

First Quarter or 1 st Quarter or 1Q – January, February and March of any given calendar year.

Fourth Quarter or 4 th Quarter or 4Q – October, November and December of any given calendar year.

General Terms and Conditions or GTC - the General Terms and Conditions of Access to and Use of AirbusWorld set forth in Clause 14.10.3.

Goods and Services - any goods and services that may be purchased by the Buyer from the Seller, excluding Aircraft.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 4 of 104


Ground Training Services - all training courses performed in classrooms (classical or Airbus CBT courses), full flight simulator sessions, fixed base simulator sessions, field trips and any other services provided to the Buyer on the ground pursuant to this Agreement and which are not Aircraft Training Services.

Group 1 A320 Aircraft – the A320 Backlog Aircraft scheduled to deliver [***] 2011, [***] 2012, [***] 2012, [***] 2012, [***] 2012, [***] 2012, [***] 2012 and [***] 2012, as set forth in Schedule 1 to the Agreement as of even date herewith.

Group 1 A320 Airframe – each of the Group 1 A320 Aircraft, excluding A320 Propulsion System.

IAE – International Aero Engines.

IAE Propulsion System – the IAE V2527-A5 Propulsion System and the IAE V2533-A5 Propulsion System, as applicable.

IAE Propulsion Systems Reference Price – as defined in Part 3 of Exhibit C to the Agreement.

InExcusable Delay – as defined in Clause 11.1.

Irrevocable SCNs - the list of SCNs set forth in Exhibit B4 which are irrevocably part of the A320 NEO specification, as expressly set forth in Exhibit B3.

Manufacture Facilities - the various manufacture facilities of the Seller, its Affiliates or any sub-contractor, where the Airframe or its parts are manufactured or assembled.

Manufacturer Specification Change Notice or MSCN – as defined in Clause 2.2.2.1.1.

Material – as defined in Clause 1.2 of Exhibit H.

NEO Aircraft – an A320 NEO Aircraft and an A321 NEO Aircraft, as applicable.

New Engine Option or NEO as defined in Clause 2.1.2.

NEO Propulsion System – the A320 NEO Propulsion System.

Original Agreement – the purchase agreement between the Seller and the Buyer dated as of April 20, 1999, as amended, from which fifty-two (52) A320-200 aircraft are transferred from and added to this Agreement.

Original Aircraft – the twenty-two (22) A320 Backlog Aircraft and the thirty (30) A321 Backlog Aircraft which were subject of the Original Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 5 of 104


PW – Pratt and Whitney.

PW Propulsion System – the PW1127G Propulsion System.

PW Propulsions Systems Reference Price – as defined in Part 4 of Exhibit C to the Agreement.

Predelivery Payment any of the payments determined in accordance with Clause 5.3.

Propulsion Systems – CFM LEAP X-1A26 Propulsion Systems, IAE V2527-A5 Propulsion Systems, IAE V2533-A5 Propulsion Systems and PW 1127G Propulsion System, as applicable.

Propulsion Systems Reference Price – CFM Propulsion Systems Reference Price, IAE Propulsion Systems Reference Price and the PW Propulsion Systems Reference Price, as applicable.

Propulsion Systems Manufacturer – CFM, IAE and PW, as applicable.

Propulsion Systems Price Revision Formula for any Propulsion System, the applicable price revision formula as set forth in Part 2, Part 3 and Part 4 of Exhibit C.

Ready for Delivery - the time when the Technical Acceptance Process has been completed in accordance with Clause 8 and all technical conditions required for the issuance of the Export Airworthiness Certificate and/or the statement of conformity (as applicable) have been satisfied.

Scheduled Delivery Month – as defined in Clause 9.1.

Scheduled Delivery Quarter – as defined in Clause 9.1.

Second Quarter or 2 nd Quarter or 2Q – April, May and June of any given calendar year.

Seller Furnished Equipment or SFE - corresponds to items of equipment that are identified in the Specification as being furnished by the Seller.

Seller Price Revision Formula is set out in Part 1 of Exhibit C.

Seller Representatives - as defined in Clause 15.1.1.

Seller Representatives Services - the services provided by the Seller to the Buyer and from the Buyer to the Seller pursuant to Clause 15.

Seller Service Life Policy – as defined in Clause 12.2.

Sharklets - a new large wingtip device, currently under development by the Seller, designed to enhance the eco-efficiency, fuel burn efficiency and payload range performance of the A320 family aircraft, and which are part of the New Engine Option and corresponding Irrevocable SCNs.

 

Page 6 of 104


Spare Parts means the items of equipment and material that may be provided pursuant to Exhibit H.

Specification Change Notice or SCN – as defined in Clause 2.2.1.

Specification - either (a) the Standard Specification if no SCNs are applicable or (b) if SCNs are issued, the Standard Specification as amended by all applicable SCNs.

Standard Specification - the A320 Standard Specification or the A321 Standard Specification, as applicable.

Supplier – as defined in Clause 12.3.1.1.

Supplier Part – as defined in Clause 12.3.1.2.

Supplier Product Support Agreements – as defined in Clause 12.3.1.3.

SPSA Application - the application on AirbusWorld, which provides the Buyer with access to the Supplier Product Support Agreements.

Technical Acceptance Process – as defined in Clause 8.1.1.

Technical Data – as defined in Clause 14.1.

Third Quarter or 3 rd Quarter or 3Q – July, August and September of any given calendar year.

Total Loss – as defined in Clause 10.4.

Type Certificate – as defined in Clause 7.1.

Warranted Part – as defined in Clause 12.1.1.

 

0.2 Clause headings and the Index are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.

 

0.3 In this Agreement unless the context otherwise requires:

 

  (a) references to Clauses, Appendices and Exhibits are to be construed as references to the Clauses of, and Appendices, and Exhibits to this Agreement and references to this Agreement include its Schedules, Exhibits and Appendices;

 

  (b) words importing the plural shall include the singular and vice versa; and

 

  (c) references to a person shall be construed as including, without limitation, references to an individual, firm, company, corporation, unincorporated body of persons and any state or agency of a state.

 

Page 7 of 104


1 SALE AND PURCHASE

The Seller will sell and deliver to the Buyer, and the Buyer will purchase and take delivery of the Aircraft from the Seller, subject to the terms and conditions contained in this Agreement.

 

Page 8 of 104


2 SPECIFICATION

 

2.1 Aircraft Specification

 

2.1.1 (i) The Group 1 A320 Aircraft will be manufactured in accordance with the A320 standard specification document number D.000.02000 Issue 6 dated January 31, 2005, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed hereto as Exhibit A3, as modified or varied prior to the date of this Agreement by the Specification Change Notices listed in Exhibit B6.

 

  (ii) The A320 Backlog Aircraft (excluding Group 1 Aircraft) will be manufactured in accordance with the A320 standard specification document number D.000.02000 Issue 8 dated June 20, 2011, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed hereto as Exhibit A1, as modified or varied prior to the date of this Agreement by the Specification Change Notices listed in Exhibit B3.

(iii) The A321 Backlog Aircraft will be manufactured in accordance with the A321 standard specification document number E.000.02000, Issue 5 dated June 20, 2011, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed hereto as Exhibit A2, as modified or varied prior to the date of this Agreement by the Specification Change Notices listed in Exhibit B5.

 

2.1.2 New Engine Option

 

2.1.2.1 The Seller is currently developing a new engine option (the “ New Engine Option ” or “ NEO ”), applicable to the A320-200 model aircraft (the “ A320 Family Aircraft ”). The specification of the A320 Family Aircraft with NEO will be derived from the A320 Standard Specification and will include (i) as applicable, the A320 NEO Propulsion System (ii) Sharklets, (iii) airframe structural adaptations and (iv) Aircraft systems and software adaptations required to operate such A320 Family Aircraft with the New Engine Option. The foregoing is currently reflected in the Irrevocable SCNs listed in Exhibit B4, the implementation of which is hereby irrevocably accepted by the Buyer.

 

2.1.2.2 The New Engine Option shall modify the design weights of the A320 Standard Specification as follows: MTOW of [***] metric tons, MLW of [***] metric tons and MZFW of [***] metric tons.

It is agreed and understood that the above design weights may be updated upon final NEO specification freeze.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 9 of 104


2.2 Specification Amendment

The parties understand and agree that the Specification may be further amended following signature of this Agreement in accordance with the terms of this Clause 2.

 

2.2.1 Specification Change Notice

The Specification may be amended by written agreement between the parties in a Specification Change Notice (SCN). Each SCN shall be substantially in the form set out in Exhibit B1 and shall set out the SCN’s Aircraft embodiment rank and shall also set forth, in detail, the particular change to be made to the Specification and the effect, if any, of such change on design, performance, weight, Delivery Date of the Aircraft affected thereby and on the text of the Specification. An SCN may result in an adjustment of the Aircraft Base Price, which adjustment, if any, shall be specified in the SCN.

 

2.2.2 Development Changes

The Specification may also be amended to incorporate changes deemed necessary by the Seller to improve the Aircraft, prevent delay or ensure compliance with this Agreement (“ Development Changes ”), as set forth in this Clause 2.

 

2.2.2.1 Manufacturer Specification Changes Notices

 

2.2.2.1.1 The Specification may be amended by the Seller through a Manufacturer Specification Change Notice (“ MSCN ”), which shall be substantially in the form set out in Exhibit B2 hereto, or by such other means as may be deemed appropriate, and shall set out the MSCN’s Aircraft embodiment rank as well as, in detail, the particular change to be made to the Specification and the effect, if any, of such change on performance, weight, Aircraft Base Price, Delivery Date of the Aircraft affected thereby and interchangeability or replaceability requirements under the Specification.

 

2.2.2.1.2 Except when the MSCN is necessitated by an Aviation Authority directive or by equipment obsolescence, in which case the MSCN shall be accomplished without requiring the Buyer’s consent, if the MSCN adversely affects the performance, weight, Base Price, Delivery Date of the Aircraft affected thereby or the interchangeability or replaceability requirements under the Specification, the Seller shall notify the Buyer of a reasonable period of time during which the Buyer must accept or reject such MSCN. If the Buyer does not notify the Seller of the rejection of the MSCN within such period, the MSCN shall be deemed accepted by the Buyer and the corresponding modification shall be accomplished.

 

2.2.2.2 In the event of the Seller revising the Specification to incorporate Development Changes which have no adverse effect on any of the elements as set forth in 2.2.2.1 above, such revision shall be performed by the Seller without the Buyer’s consent.

 

Page 10 of 104


In such cases, the Buyer shall have access to the details of such changes through the relevant application in AirbusWorld.

 

2.2.2.3 The Seller is considering [***].

 

2.3 Propulsion Systems

 

2.3.1 The A320 Backlog Airframe and the Group 1 A320 Airframe shall be equipped with a set of two (2) IAE V2527-A5 engines (the “ A320 Propulsion System ”).

 

2.3.2 The A320 NEO Airframe will be equipped with either a set of two (2) (i) CFMI Leap-X1A26 engines or (ii) PW1127G engines (each, the “ A320 NEO Propulsion System ”), each with an AET of 26,300 lbf.

 

2.3.3 The A321 Backlog Airframe shall be equipped with a set of two (2) IAE V2533-A5 engines (the “ A321 Propulsion System ”).

 

2.3.4 The Buyer will notify the Seller in writing of its choice of Propulsion System for the NEO Aircraft by signature of this Agreement, but in no event later than November 30, 2011.

 

2.4 Milestones

 

2.4.1 Customization Milestones Chart

Within a reasonable period following signature of the Agreement, the Seller shall provide the Buyer with a customization milestones chart (the “ Customization Milestone Chart ”), setting out how far in advance of the Scheduled Delivery Month of the Aircraft an SCN must be executed in order to integrate into the Specification any items requested by the Buyer from the Seller’s catalogs of Specification change options (the “ Option Catalogs ”).

 

2.4.2 Contractual Definition Freeze

The Customization Milestone Chart shall in particular define the date(s) by which the contractual definition of the Aircraft must be finalized and all SCNs need to have been executed by the Buyer (the “ Contractual Definition Freeze ” or “ CDF ”) in order to enable their incorporation into the manufacturing of the Aircraft and Delivery of the Aircraft in the Scheduled Delivery Month. Each such date shall be referred to as a “ CDF Date ”.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 11 of 104


3 PRICES

 

3.1 Base Price of the Aircraft

The “ Base Price ” of each Aircraft is the sum of:

 

  (i) The applicable Base Price of the Airframe, and

 

  (ii) The applicable Base Price of the Propulsion System.

 

3.1.1 The “ Base Price of the A320 Backlog Airframe ” (excluding the Group 1 A320 Airframe) is the sum of the following base prices :

 

  (i) the base price of the A320 Backlog Airframe as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is:

USD $[***]

(US Dollars – [***]) and

 

  (ii) the sum of the base prices of all SCNs set forth in Exhibit B3, which is:

USD $[***]

(US Dollars – [***])

 

3.1.2 The Base Price of the A320 Backlog Airframe, (excluding the Group 1 A320 Airframe) has been established in accordance with the average economic conditions prevailing in [***] and corresponding to a theoretical delivery in [***] (the, “ A320 Family Base Period ”).

 

3.1.3 The “ Base Price of the A320 NEO Airframe” is the sum of the following base prices :

 

  (i) the base price of the A320 NEO Airframe as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers which is :

USD $[***]

(US Dollars – [***]),

 

  (ii) the sum of the base prices of the Irrevocable SCNs set forth in Exhibit B4, which is the sum of:

 

  a) the base price of the New Engine Option is:

USD $[***]

(US Dollars – [***]) and

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 12 of 104


  b) the base price of the Sharklets is

  USD $[***]

(US Dollars – [***]),

 

  (iii) the sum of the base prices of any and all additional SCNs (other than Irrevocable SCNs to the extent included in Clause 3.1.3(ii)) set forth in Exhibit B4 is:

USD $[***]

(US Dollars – [***]) and

 

  (iv) the base price of the Master Charge Engine, which is applicable if a CFM LEAP-X Propulsion System is selected, which is:

USD $[***]

(US Dollars [***])

 

3.1.4 The A320 NEO Airframe Base Price has been established in accordance with the average economic conditions prevailing in A320 Family Base Period.

 

3.1.5 The “ Base Price of the A321 Backlog Airfram e” is the sum of the following base prices :

 

  (i) the base price of the A321 Airframe as defined in the A321 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is:

USD $[***]

(US Dollars – [***]) and

 

  (ii) the sum of the base prices of all SCNs set forth in Exhibit B5, which is:

USD $[***]

(US Dollars – [***])

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 13 of 104


3.1.6 The A321 Backlog Airframe Base Price has been established in accordance with the average economic conditions prevailing in the A320 Family Base Period.

 

3.1.7 The “ Base Price of the Group 1 A320 Airframe ” is the sum of the following base prices:

 

  (i) the base price of the Group 1 A320 Airframe as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is:

USD $[***]

(US Dollars – [***]) and

 

  (ii) the sum of the base prices of all SCNs set forth in Exhibit B6, which is:

USD $[***]

(US Dollars – [***]).

 

3.1.8 The Base Price of the Group 1 A320 Airframe has been established in accordance with the average economic conditions prevailing in the A320 Family Base Period.

 

3.2 Propulsion Systems Base Price

 

3.2.1 The base price of a set of two (2) IAE V2527-A5 engines (the “ IAE V2527-A5 Propulsion Systems ”) is:

USD $[***]

(US Dollars – [***])

The Base Price of the IAE Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the IAE Propulsion Systems Reference Price, as set forth in Part 3 of Exhibit C to the Agreement.

 

3.2.2 The base price of a set of two (2) CFM LEAP X-1A26 engines (the “CFM LEAP X-1A26 Propulsion System ”) is

USD $[***]

(US Dollars – [***])

The Base Price of the CFM LEAP X-1A26 Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the CFM Propulsion Systems Reference Price, as set forth in Part 2 of Exhibit C to the Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 14 of 104


Notwithstanding the foregoing, the CFM Propulsion Systems Reference Price corresponds to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

 

3.2.3 The base price of a set of two (2) PW1127G engines (the “ PW 1127G Propulsion Systems ”) is

USD $[***]

(US Dollars – [***])

The Base Price of the PW 1127G Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the PW Propulsion Systems Reference Price, as set forth in Part 4 of Exhibit C to the Agreement.

Notwithstanding the foregoing, the PW Propulsion Systems Reference Price corresponds to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

 

3.2.4 The base price of a set of two (2) IAE V2533-A5 engines (the “ IAE V2533-A5 Propulsion Systems ”) is:

USD $[***]

(US Dollars – [***])

The Base Price of the IAE Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the IAE Propulsion Systems Reference Price, as set forth in Part 3 of Exhibit C to the Agreement.

 

3.3 Final Price

The Final Price of each Aircraft shall be the sum of:

 

  (i) the applicable Airframe Base Price as revised as of the Delivery Date in accordance with Clause 4.1; plus

 

  (ii) the aggregate of all increases or decreases to the Airframe Base Price as agreed in any Specification Change Notice or part thereof applicable to the Airframe subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.1; plus

 

  (iii) the applicable Propulsion Systems Reference Price as revised as of the Delivery Date in accordance with Clause 4.2; plus

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 15 of 104


  (iv) the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; plus

 

  (v) any other amount due by the Buyer to the Seller pursuant to this Agreement and/or any other written agreement between the Buyer and the Seller with respect to the Aircraft.

 

Page 16 of 104


4 - PRICE REVISION

 

4.1 Seller Price Revision Formula

For each Airframe, the Base Price of the Airframe is subject to revision up to and including the Delivery Date in accordance with the Seller Price Revision Formula.

 

4.2 Propulsion Systems Price Revision

 

4.2.1 The Propulsion Systems Reference Price applicable to the Propulsion System is subject to revision up to and including the Delivery Date in accordance with the applicable Propulsion System Price Revision Formula.

 

4.2.2 The Reference Price of the Propulsion System, the prices of the related equipment and the Propulsion System Price Revision Formula are based on information received from the Propulsions System Manufacturer and are subject to amendment by the Propulsion System Manufacturer at any time prior to Delivery. If the Propulsion System Manufacturer makes any such amendment, the amendment will be deemed to be incorporated into this Agreement and the Reference Price of the Propulsion System, the prices of the related equipment and the Propulsion System Price Revision Formula will be adjusted accordingly. The Seller agrees to notify the Buyer as soon as the Seller receives notice of any such amendment from any Propulsion System Manufacturer.

 

Page 17 of 104


5 - PAYMENT TERMS

 

5.1 Seller’s Account

The Buyer will pay the Predelivery Payments, the Balance of the Final Price and any other amount due hereunder in immediately available funds in United States dollars to:

[***]

or to such other account as may be designated by the Seller.

 

5.2 Previous Predelivery Payments and Commitment Fee

 

5.2.1 The Seller acknowledges that it has received from the Buyer a [***] commitment fee of US$[***] (US Dollars – [***]) for each Aircraft set forth in Clause 9.1 as of the date of this Agreement (the “ Commitment Fee ”) for an aggregate total of US$[***] (US Dollars – [***]) (which consists of US$[***] for the total of forty (40) NEO Aircraft and US$[***] for the total of fifty-two (52) Backlog Aircraft). An amount equal to the Commitment Fee paid with respect to an Aircraft will be [***].

 

5.2.2 The Seller acknowledges that it has in its possession Predelivery Payments received from the Buyer for the Original Aircraft, in the aggregate total of US$[***] (US Dollars – [***]) (the “ Previous Predelivery Payments ”) which [***].

 

5.3 Predelivery Payments

 

5.3.1 Predelivery Payments [***] and will be paid by the Buyer to the Seller for the Aircraft.

 

5.3.2 The Predelivery Payment Reference Price for an Aircraft to be delivered in [***] is determined in accordance with the following formula:

[***]

 

5.3.3 Predelivery Payments will be paid according to the following schedule.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 18 of 104


 

Payment Date

   Percentage
of
Predelivery
Payment

Reference
Price

1 st Payment

   [***]    [***]
   No later than the first Business Day of each of the following months:   

2 nd Payment

   -[***]    [***]

3 rd Payment

   -[***]    [***]

4 th Payment

   -[***]    [***]
5 th Payment    -[***]    [***]

TOTAL PAYMENT PRIOR TO DELIVERY

   [***]

In the event of the above schedule resulting in any Predelivery Payment falling due prior to the date of signature of the Agreement, such Predelivery Payments shall be made upon signature of this Agreement.

 

5.3.4 The Seller will be entitled to hold and use any Predelivery Payment as absolute owner thereof, subject only to [***]. The Seller will be under no obligation to segregate any Predelivery Payment, or any amount equal thereto, from the Seller’s funds generally.

 

5.4 Payment of Balance of the Final Price of the Aircraft

 

5.4.1 Before the Delivery Date or concurrent with the Delivery of each Aircraft, the Buyer will pay to the Seller the Final Price of such Aircraft less the amount of Predelivery Payments received for such Aircraft by the Seller (the “ Balance of the Final Price ”).

 

5.4.2 The Seller’s receipt of the full amount of all Predelivery Payments and of the Balance of the Final Price of the Aircraft, including any amounts due under Clause 5.8, are a condition precedent to the Seller’s obligation to deliver such Aircraft to the Buyer.

 

5.5 Taxes

 

5.5.1 The amounts stated in this Agreement to be payable by the Buyer are exclusive of value added tax (“ VAT ”) chargeable under the laws of any jurisdiction and

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 19 of 104


  accordingly the Buyer shall pay any VAT chargeable with respect to any Aircraft, component, accessory, equipment, part or service delivered or furnished under this Agreement

 

5.5.2 The Seller will pay all other Taxes (except for Taxes based on or measured by the income of the Buyer or any Taxes levied against the Buyer for the privilege of doing business in any jurisdiction), levied, assessed, charged or collected, on or prior to Delivery of any Aircraft, for or in connection with the manufacture, assembly, sale and delivery under this Agreement of such Aircraft or any parts, instructions or data installed thereon or incorporated therein (except Buyer Furnished Equipment referred to in Clause 18).

 

5.5.3 The Buyer will pay all Taxes not assumed by the Seller under Clause 5.5.2, except for Taxes based on or measured by the income of the Seller or any Taxes levied against the Seller for the privilege of doing business in any jurisdiction.

Taxes ” means any present or future tax, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any governmental authority or any political subdivision or taxing authority thereof or therein.

 

5.6 Application of Payments

Notwithstanding any other rights the Seller may have at contract or at law, the Buyer and the Seller hereby agree that should any amount (whether under this Agreement or under any other material agreement related to the Aircraft between the Buyer and its Affiliates on the one hand and the Seller and its Affiliates on the other hand and whether at the stated maturity of such amount, by acceleration or otherwise) become due and payable by the Buyer or its Affiliates, and not be paid in full in immediately available funds on the date due, then the Seller will have the right to debit and apply, in whole or in part, the Predelivery Payments paid to the Seller by the Buyer against such unpaid amount. The Seller will promptly notify the Buyer in writing after such debiting and application, and the Buyer will immediately pay to the Seller the amount required to comply with Clause 5.3.

 

5.7 Setoff Payments

Notwithstanding anything to the contrary contained herein, the Seller may set-off any matured obligation owed by the Buyer to the Seller and/or its Affiliates against any obligation (whether or not matured) owed by the Seller to the Buyer, regardless of the place of payment or currency (it being understood that if this obligation is unascertainable it may be estimated and the set-off made in respect of such estimate).

 

5.8 Overdue Payments

 

5.8.1

If any payment due to the Seller is not received by the Seller on the date or dates due, the Seller will have the right to claim from the Buyer, and the Buyer will

 

Page 20 of 104


  promptly pay to the Seller on receipt of such claim, interest at the rate of [***] per month on the amount of such overdue payment, to be calculated from and including the due date of such payment to (but excluding) the date such payment is received by the Seller. The Seller’s right to receive such interest will be in addition to any other rights of the Seller hereunder or at law.

 

5.8.2 If any Predelivery Payment is not received on the date on which it is due, the Seller, in addition to any other rights and remedies available to it, will be under no obligation to deliver any Aircraft remaining to be delivered under this Agreement within such Aircraft’s Scheduled Delivery Month(s). Upon receipt of the full amount of all such overdue Predelivery Payments, together with interest on such Predelivery Payments in accordance with Clause 5.8.1, the Seller will provide the Buyer with new Scheduled Delivery Months for the affected Aircraft, subject to the Seller’s Commercial and Industrial Constraints.

 

5.9 Proprietary Interest

Notwithstanding any provision of law to the contrary, the Buyer will not, by virtue of anything contained in this Agreement (including, without limitation, any Commitment Fee or Predelivery Payments hereunder, or any designation or identification by the Seller of a particular aircraft as an Aircraft to which any of the provisions of this Agreement refers) acquire any proprietary, insurable or other interest whatsoever in any Aircraft before Delivery of and payment for such Aircraft, as provided in this Agreement.

 

5.10 Payment in Full

The Buyer’s obligation to make payments to the Seller hereunder will not be affected by and will be determined without regard to any setoff, counterclaim, recoupment, defense or other right that the Buyer may have against the Seller or any other person and all such payments will be made without deduction or withholding of any kind. The Buyer will ensure that the sums received by the Seller under this Agreement will be equal to the full amounts expressed to be due to the Seller hereunder, without deduction or withholding on account of and free from any and all taxes, levies, imposts, duties or charges of whatever nature, except that if the Buyer is compelled by law to make any such deduction or withholding the Buyer will pay such additional amounts to the Seller as may be necessary so that the net amount received by the Seller after such deduction or withholding will equal the amounts that would have been received in the absence of such deduction or withholding.

 

5.11 Other Charges

Unless expressly stipulated otherwise, any charges due under this Agreement other than those set out in Clauses 5.2, 5.3 and 5.8 will be paid by the Buyer at the same time as payment of the Balance of the Final Price or, if invoiced, within thirty (30) days after the invoice date.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 21 of 104


5.12 Cross-Collateralisation

 

5.12.1 The Buyer hereby agrees that, notwithstanding any provision to the contrary in this Agreement, in the event that the Buyer should fail to make any material payment owing under this Agreement or under any other material agreement between the Buyer and the Seller and/or any of their respective Affiliates (the “Other Agreement”), the Seller may:

 

  (i) withhold payment to the Buyer or its Affiliates of any sums that may be due to or claimed by the Buyer or its Affiliates from the Seller or its Affiliates pursuant to this Agreement or any Other Agreement, including Predelivery Payments, unless or until the default under this Agreement or the Other Agreement is cured or remedied; and

 

  (ii) apply any amount of any Predelivery Payment it then holds under this Agreement in respect of any of the Aircraft as well as any other monies held pursuant to any Other Agreement (collectively the “Relevant Amounts”) in such order as the Seller deems appropriate in satisfaction of any amounts due and unpaid by the Buyer or its Affiliates and to compensate for any losses and/or damages the Seller or its Affiliates may suffer as a result of the Buyer’s or its Affiliates’ failure to make payments in a timely manner under this Agreement or any Other Agreement. The Buyer acknowledges that the application of any of the Relevant Amounts as aforesaid may result in the Buyer or its Affiliates being in default (unless such default is otherwise cured or remedied) in relation to the agreement in respect of which such Relevant Amounts were originally granted or required to be paid, as the case may be.

The rights granted to the Seller in the preceding paragraphs (i) and (ii) are without prejudice and are in addition to and shall not be deemed a waiver of any other rights and remedies the Seller or its Affiliates may have at law or under this Agreement or any Other Agreement, including the right of set-off.

 

5.12.2 In the event that the Seller applies any amount of any Predelivery Payment it then holds under this Agreement in respect of any of the Aircraft in satisfaction of the amount due and unpaid by the Buyer or its Affiliates or to compensate for losses and/or damages to the Seller or its Affiliates as a result of the Buyer’s or its Affiliates’ failure to make payment in a timely manner under the Agreement or any Other Agreement, then the Seller shall notify the Buyer to that effect. Within three (3) Business Days of issuance of such notification, the Buyer shall pay by wire transfer of funds immediately available to the Seller the amount of the Predelivery Payment that has been applied by the Seller as set forth above.

Failure of the Buyer to pay such amount in full, shall entitle the Seller to (i) collect interest on such unpaid amount in accordance with Clause 5.8.1 hereof from the fourth (4th) working day following the Seller’s written request to the Buyer for such payment and (ii) treat such failure as an additional termination event for which the Seller shall be entitled to the remedies available under Clause 20.2 of the Agreement.

 

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6 - MANUFACTURE PROCEDURE - INSPECTION

 

6.1 Manufacture Procedures

Each Airframe will be manufactured in accordance with the requirements of the laws of the jurisdiction of incorporation of the Seller or of its relevant Affiliate as enforced by the Aviation Authority of such jurisdiction.

 

6.2 Inspection

 

6.2.1 The Buyer or its duly authorized representatives (the “ Buyer’s Inspector(s) ”) will be entitled to inspect the manufacture of the Airframe and all materials and parts obtained by the Seller for the manufacture of the Airframe (“ the Inspection ”) on the following terms and conditions;

 

  (i) any Inspection will be conducted pursuant to the Seller’s system of inspection and the relevant Airbus Procedures, as developed under the supervision of the relevant Aviation Authority;

 

  (ii) the Buyer’s Inspector(s) will have access to such relevant technical documentation as is reasonably necessary for the purpose of the Inspection;

 

  (iii) any Inspection and any related discussions with the Seller and other relevant personnel by the Buyer’s Inspector(s) will be at reasonable times during business hours and will take place in the presence of the relevant inspection department personnel of the Seller;

 

  (iv) the Inspections will be performed in a manner not to unduly delay or hinder the manufacture or assembly of the Aircraft or the performance of this Agreement by the Seller or any other work in progress at the Manufacture Facilities.

 

6.2.2 Location of Inspections

The Buyer’s Inspector(s) will be entitled to conduct any such Inspection at the relevant Manufacture Facility of the Seller or the Affiliates and where possible at the Manufacture Facilities of the sub-contractors provided that if access to any part of the Manufacture Facilities where the Airframe manufacture is in progress or materials or parts are stored are restricted for security or confidentiality reasons, the Seller will be allowed reasonable time to make the relevant items available elsewhere.

 

6.3 Seller’s Service for Buyer’s Inspector(s)

For the purpose of the Inspections, and starting from a mutually agreed date until the Delivery Date, the Seller will furnish without additional charge suitable space and office equipment in or conveniently located with respect to the Delivery Location for the use of a reasonable number of Buyer’s Inspector(s).

 

Page 23 of 104


7 - CERTIFICATION

Except as set forth in this Clause 7, the Seller will not be required to obtain any certificate or approval with respect to any Aircraft.

 

7.1 Type Certification

The Aircraft have been type certificated under EASA procedures for joint certification in the transport category. The Seller will obtain or cause to be obtained an FAA type certificate (the “ Type Certificate ”) to allow the issuance of the Export Certificate of Airworthiness.

 

7.2 Export Certificate of Airworthiness

Subject to the provisions of Clause 7.3, each Aircraft will be delivered to the Buyer with an Export Certificate of Airworthiness and in a condition enabling the Buyer to obtain at the time of Delivery a Standard Airworthiness Certificate issued pursuant to Part 21 of the US Federal Aviation Regulations and a Certificate of Sanitary Construction issued by the U.S. Public Health Service of the Food and Drug Administration. However, the Seller will have no obligation to make and will not be responsible for any costs of alterations or modifications to such Aircraft to enable such Aircraft to meet FAA or U.S. Department of Transportation requirements for specific operation on the Buyer’s routes, whether before, at or after Delivery of any Aircraft.

If the FAA requires additional or modified data before the issuance of the Export Certificate of Airworthiness, the Seller will provide such data or implement the required modification to the data, in either case, at the Seller’s cost.

 

7.3 Specification Changes before Aircraft Ready for Delivery

 

7.3.1 If, any time before the date on which the Aircraft is Ready for Delivery, any law, rule or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law, rule or regulation is issued by the EASA that requires any change to the Specification for the purposes of obtaining the Export Certificate of Airworthiness (a “ Change in Law ”), the Seller will make the required modification and the parties hereto will sign an SCN.

 

7.3.2 The Seller will as far as practicable, without prejudice to Clause 7.3.3(ii), take into account the information available to it concerning any proposed law, rule or regulation or interpretation that could become a Change in Law, in order to minimize the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective before the applicable Aircraft is Ready for Delivery.

 

Page 24 of 104


7.3.3 The cost of implementing the required modifications referred to in Clause 7.3.1 will be:

 

  [***]

 

7.3.4 Notwithstanding the provisions of Clause 7.3.3, if a Change in Law relates to an item of BFE or to the Propulsion Systems the costs related thereto will be borne [***].

 

7.4 Specification Changes after Aircraft Ready For Delivery

Nothing in Clause 7.3 will require the Seller to make any changes or modifications to, or to make any payments or take any other action with respect to, any Aircraft that is Ready for Delivery before the compliance date of any law or regulation referred to in Clause 7.3. Any such changes or modifications made to an Aircraft after it is Ready for Delivery will be at the Buyer’s expense.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 25 of 104


8 TECHNICAL ACCEPTANCE

 

8.1 Technical Acceptance Process

 

8.1.1 Prior to Delivery, each Aircraft will undergo a technical acceptance process developed by the Seller (the “ Technical Acceptance Process ”). Completion of the Technical Acceptance Process will demonstrate the satisfactory functioning of such Aircraft and will be deemed to demonstrate compliance with the Specification. Should it be established that such Aircraft does not comply with the Technical Acceptance Process requirements, the Seller will without hindrance from the Buyer be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the Aircraft to such further Technical Acceptance Process as is necessary to demonstrate the elimination of the non-compliance.

 

8.1.2 The Technical Acceptance Process will:

 

  (i) commence on a date notified by the Seller to the Buyer no less than ten (10) days prior,

 

  (ii) take place at the Delivery Location,

 

  (iii) be carried out by the personnel of the Seller, and

 

  (iv) include a technical acceptance flight that will not exceed three (3) hours (the “ Technical Acceptance Flight ”).

 

8.2 Buyer’s Attendance

 

8.2.1 The Buyer is entitled to elect to attend the Technical Acceptance Process.

 

8.2.2 If the Buyer elects to attend the Technical Acceptance Process, the Buyer:

 

  (i)

will comply with the reasonable requirements of the Seller, with the intention of completing the Technical Acceptance Process within five (5) Business Days, and

 

  (ii) may have a maximum of four (4) of its representatives (no more than three (3) of whom will have access to the cockpit at any one time) accompany the Seller’s representatives on the Technical Acceptance Flight, during which the Buyer’s representatives will comply with the instructions of the Seller’s representatives.

 

8.2.3 If the Buyer does not attend or fails to cooperate in the Technical Acceptance Process, the Seller will be entitled to complete the Technical Acceptance Process and the Buyer will be deemed to have accepted that the Technical Acceptance Process has been satisfactorily completed, in all respects.

 

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8.3 Certificate of Acceptance

Upon successful completion of the Technical Acceptance Process, the Buyer will, on or before the Delivery Date, sign and deliver to the Seller a certificate of acceptance in respect of each Aircraft in the form of Exhibit D (the “ Certificate of Acceptance ”).

 

8.4 Finality of Acceptance

The Buyer’s signature of the Certificate of Acceptance for each Aircraft will constitute waiver by the Buyer of any right it may have, under the Uniform Commercial Code as adopted by the State of New York or otherwise, to revoke acceptance of the Aircraft for any reason, whether known or unknown to the Buyer at the time of acceptance.

 

8.5 Aircraft Utilization

The Seller will, without payment or other liability, be entitled to use each Aircraft before Delivery as may be necessary to obtain the certificates required under Clause 7. Such use will not limit the Buyer’s obligation to accept Delivery hereunder.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 27 of 104


9 - DELIVERY

 

9.1 Delivery Schedule

Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Aircraft Ready for Delivery at the Delivery Location within, as applicable the following months (each a “ Scheduled Delivery Month ”) or quarters (each, a “ Scheduled Delivery Quarter ”) or years (each a “ Scheduled Delivery Year ”), as applicable, set forth in Schedule 1 hereto (collectively the “ Delivery Schedule ”).

 

9.1.1 In respect of each Aircraft corresponding to a Scheduled Delivery Year as set forth in Schedule 1, the Seller will provide notification to the Buyer of the Scheduled Delivery Quarter no later than [***] prior to the first day of such Scheduled Delivery Year for such Aircraft.

 

9.1.2 In respect of each Aircraft corresponding to a Scheduled Delivery Quarter as set forth in Schedule 1, the Seller will provide notification to the Buyer the Scheduled Delivery Month no later than [***] before the first day of the first month of such Scheduled Delivery Quarter, provided that the Buyer and the Seller shall use commercially reasonable efforts to optimize the Delivery Schedule to account for the Buyer’s seasonal demand.

 

9.1.3

The Seller will give the Buyer at least [***] written notice of the anticipated week on which the Aircraft will be Ready for Delivery.

 

9.1.4 The Seller will give the Buyer at least [***] written notice of the anticipated date on which the Aircraft will be Ready for Delivery. Such notice will also include the starting date and the planned schedule of the Technical Acceptance Process. Thereafter the Seller will notify the Buyer of any change to such dates.

 

9.2 Delivery Process

 

9.2.1 The Buyer will send its representatives to the Delivery Location to take Delivery of the Aircraft at the date on which the Aircraft is Ready for Delivery, and fly the Aircraft from the Delivery Location.

 

9.2.2 The Seller will deliver and transfer title to the Aircraft to the Buyer free and clear of all encumbrances (except for any liens or encumbrances created by or on behalf of the Buyer) provided that the Balance of the Final Price of such Aircraft has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance has been signed and delivered to the Seller pursuant to Clause 8.3. The Seller will provide the Buyer with a bill of sale in the form of Exhibit E (the “ Bill of Sale ”) and/or such other documentation confirming transfer of title and receipt of the Final Price of the Aircraft as may reasonably be requested by the Buyer. Title to and risk of loss of or damage to the Aircraft will pass to the Buyer contemporaneously with the delivery by the Seller to the Buyer of such Bill of Sale.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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9.2.3 Within the period set forth in Clause 9.2.1 above, if the Buyer fails to (i) deliver the signed Certificate of Acceptance to the Seller, or (ii) pay the Balance of the Final Price of the Aircraft to the Seller, then the Buyer will be deemed to have rejected Delivery wrongfully when the Aircraft was duly tendered to the Buyer hereunder. If such a deemed rejection arises, and in addition to the remedies of Clause 5.8.1, the Seller will retain title to the Aircraft and the Buyer will indemnify and hold the Seller harmless against any and all costs (including but not limited to any parking, storage, and insurance costs) and risk of loss of or damage to the Aircraft), it being understood that the Seller will be under no duty to the Buyer to store, park, insure or otherwise protect the Aircraft. These rights of the Seller will be in addition to the Seller’s other rights and remedies in this Agreement.

 

9.3 Flyaway

 

9.3.1 The Buyer and the Seller will cooperate to obtain any licenses that may be required by the Aviation Authority of the Delivery Location for the purpose of exporting the Aircraft.

 

9.3.2 All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery will be borne by the Buyer. The Buyer will make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights.

 

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10 - EXCUSABLE DELAY AND TOTAL LOSS

 

10.1 Scope of Excusable Delay

Neither the Seller nor any Affiliate of the Seller, will be responsible for or be deemed to be in default on account of delays in delivery of the Aircraft or failure to deliver or otherwise in the performance of this Agreement or any part hereof due to causes beyond the Seller’s, or any Affiliate’s control or not occasioned by the Seller’s, fault or negligence (“ Excusable Delay ”), including, but not limited to: (i) acts of God or the public enemy, natural disasters, fires, floods, storms beyond ordinary strength, explosions or earthquakes; epidemics or quarantine restrictions; any law, decision, regulation, directive or other act (whether or not having the force of law) of any government or of the Council of the European Community or the Commission of the European Community or of any national, Federal, State, municipal or other governmental department, commission, board, bureau, agency, court or instrumentality, domestic or foreign; governmental priorities, regulations or orders affecting allocation of materials, facilities or a completed Aircraft; war, civil war or warlike operations, terrorism, insurrection or riots; failure of transportation; strikes or labor troubles causing cessation, slow down or interruption of work; delay in obtaining any airworthiness or type certification; inability after due and timely diligence to procure materials, accessories, equipment or parts; general hindrance in transportation; or failure of a subcontractor or supplier to furnish materials, components, accessories, equipment or parts; (ii) any delay caused directly or indirectly by the action or inaction of the Buyer; and (iii) delay in delivery or otherwise in the performance of this Agreement by the Seller due in whole or in part to any delay in or failure of the delivery of, or any other event or circumstance relating to, the Propulsion Systems or Buyer Furnished Equipment . The Seller will as soon as practicable after becoming aware of any delay falling within the provisions of this Subclause 10.1 [***].

 

10.2 Consequences of Excusable Delay

If an Excusable Delay occurs:

 

  (i) the Seller will notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same;

 

  (ii) the Seller will not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer;

 

  (iii) the Seller will not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay;

 

  (iv) the Seller will as soon as practicable after the removal of the cause of such delay resume performance of its obligations under this Agreement and in particular will notify the Buyer of the revised Scheduled Delivery Month.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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10.3 Termination on Excusable Delay

 

10.3.1 If any Delivery is delayed as a result of an Excusable Delay for a period of more than twelve (12) months after the last day of the Scheduled Delivery Month, then either party may terminate this Agreement with respect to the affected Aircraft, by giving written notice to the other party within thirty (30) days after the expiration of such twelve (12) month period. However, the Buyer will not be entitled to terminate this Agreement pursuant to this Clause 10.3.1 if the Excusable Delay is caused directly or indirectly by the action or inaction of the Buyer.

 

10.3.2 If the Seller advises the Buyer in its notice of a revised Scheduled Delivery Month pursuant to Clause 10.2.1(iv) that there will be a delay in Delivery of an Aircraft of more than twelve (12) months after the last day of the Scheduled Delivery Month, then either party may terminate this Agreement with respect to the affected Aircraft. Termination will be made by giving written notice to the other party within thirty (30) days after the Buyer’s receipt of the notice of a revised Scheduled Delivery Month.

 

10.3.3 If this Agreement is not terminated under the terms of Clause 10.3.1 or 10.3.2, then the Seller will be entitled to reschedule Delivery. The Seller will notify the Buyer of the new Scheduled Delivery Month after the thirty (30) day period referred to in Clause 10.3.1 or 10.3.2, and this new Scheduled Delivery Month will be deemed to be an amendment to the applicable Scheduled Delivery Month in Clause 9.1.

 

10.4 Total Loss, Destruction or Damage

If, prior to Delivery, any Aircraft is lost, destroyed or in the reasonable opinion of the Seller is damaged beyond economic repair (“ Total Loss ”), the Seller will notify the Buyer to this effect within one (1) month of such occurrence. The Seller will include in said notification (or as soon after the issue of the notice as such information becomes available to the Seller) the earliest date consistent with the Seller’s other commitments and production capabilities that an aircraft to replace the Aircraft may be delivered to the Buyer and the Scheduled Delivery Month will be extended as specified in the Seller’s notice to accommodate the delivery of the replacement aircraft; provided, however, that if the Scheduled Delivery Month is extended to a month that is later than twelve (12) months after the last day of the original Scheduled Delivery Month then this Agreement will terminate with respect to said Aircraft unless:

 

  (i) the Buyer notifies the Seller within one (1) month of the date of receipt of the Seller’s notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Seller’s notice; and

 

  (ii) the parties execute an amendment to this Agreement recording the change in the Scheduled Delivery Month.

Nothing herein will require the Seller to manufacture and deliver a replacement aircraft if such manufacture would require the reactivation of its production line for the model or series of aircraft that includes the Aircraft.

 

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10.5 Termination Rights Exclusive

If this Agreement is terminated as provided for under the terms of Clauses 10.3 or 10.4, such termination will discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft and undelivered material, services, data or other items applicable thereto and to be furnished under the Agreement.

 

10.6 Remedies

THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 11, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 WHERE THE DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS REPRESENTATIVES.

 

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11- INEXCUSABLE DELAY

 

11.1 Liquidated Damages

Should an Aircraft not be Ready for Delivery within (i) [***] after the last day of the Scheduled Delivery Month for any Backlog Aircraft, or (ii) [***] after the last day of the Scheduled Delivery Month for any NEO Aircraft (in each case as such month may be changed pursuant to Clauses 2, 7 and/or 10) (the “ Delivery Period ”) and such delay is not as a result of an Excusable Delay or Total Loss, then such delay will be termed an “ Inexcusable Delay .” In the event of an Inexcusable Delay, the Buyer will have the right to claim, and the Seller will pay the Buyer liquidated damages of US$[***] (US Dollars – [***]) for each day of delay in the Delivery starting on the date that is the day after the last day of the Delivery Period for such Aircraft.

In no event will the amount of liquidated damages exceed the total of US $[***] (US dollars – [***]) in respect of any one Aircraft.

The Buyer’s right to liquidated damages in respect of an Aircraft is conditioned on the Buyer’s submitting a written claim for liquidated damages to the Seller not later than [***] after the last day of the relevant Delivery Period.

 

11.2 Renegotiation

If, as a result of an Inexcusable Delay, the Delivery does not occur within [***] after the last day of the Delivery Period the Buyer will have the right, exercisable by written notice to the Seller given between [***] and [***] after lapse of such [***] period, to require from the Seller a renegotiation of the Scheduled Delivery Month for the affected Aircraft. Unless otherwise agreed between the Seller and the Buyer during such renegotiation, the said renegotiation will not prejudice the Buyer’s right to receive liquidated damages in accordance with Clause 11.1.

 

11.3 Termination

If, as a result of an Inexcusable Delay, the Delivery does not occur within [***] after the last day of the Delivery Period and the parties have not renegotiated the Delivery Date pursuant to Clause 11.2, then both parties will have the right exercisable by written notice to the other party, given between [***] after the lapse of such [***] period, to terminate this Agreement in respect of the affected Aircraft. In the event of termination, neither party will have any claim against the other, except that the Seller will pay to the Buyer any amounts due pursuant to Clause 11.1 [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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11.4 Remedies

THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 11 WHERE THE DELAY REFERRED TO IN THIS CLAUSE 11 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS REPRESENTATIVES.

 

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12 WARRANTIES AND SERVICE LIFE POLICY

This Clause covers the terms and conditions of the warranty and service life policy.

 

12.1 Standard Warranty

 

12.1.1 Nature of Warranty

For the purpose of this Agreement the term “ Warranted Part ” will mean any Seller proprietary component, equipment, accessory or part, which is installed on an Aircraft at Delivery thereof and

 

  (a) which is manufactured to the detailed design of the Seller or a subcontractor of the Seller and

 

  (b) which bears a part number of the Seller at the time of such Delivery.

Subject to the conditions and limitations as hereinafter provided for and except as provided for in Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and each Warranted Part will at Delivery to the Buyer be free from defects:

 

  (i) in material;

 

  (ii) in workmanship, including without limitation processes of manufacture;

 

  (iii) in design (including without limitation the selection of materials) having regard to the state of the art at the date of such design; and

 

  (iv) arising from failure to conform to the Specification, except to those portions of the Specification relating to performance or where it is expressly stated that they are estimates or approximations or design aims.

 

12.1.2 Exclusions

The warranties set forth in Clause 12.1.1 will not apply to Buyer Furnished Equipment, nor to the Propulsion Systems, nor to any component, equipment, accessory or part installed on the Aircraft at Delivery that is not a Warranted Part except that:

 

  (i) any defect in the Seller’s workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items, that invalidates any applicable warranty from such manufacturers, will constitute a defect in workmanship for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1 (ii); and

 

  (ii) any defect inherent in the Seller’s design of the installation, in consideration of the state of the art at the date of such design, which impairs the use of such items, will constitute a defect in design for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1 (iii).

 

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12.1.3 Warranty Period

The warranties set forth in Clauses 12.1.1 and 12.1.2 will be limited to those defects that [***] (the “ Warranty Period ”).

 

12.1.4 Limitations of Warranty

 

12.1.4.1 The Buyer’s remedy and the Seller’s obligation and liability under Clauses 12.1.1 and 12.1.2 are limited to (except as otherwise expressly set forth herein), [***].

The Seller may alternatively [***].

 

12.1.4.2 In the event of a defect covered by Clauses 12.1.1 (iii), 12.1.1 (iv) and 12.1.2 (ii) becoming apparent within the Warranty Period, the Seller shall also, if so requested by the Buyer in writing, correct such defect in any Aircraft which has not yet been delivered to the Buyer, provided, however,

 

  (i) that Seller shall provide Buyer with written notice confirming that the pre-delivery correction of such defect will not result in a delay in the Delivery of the Aircraft, or if Seller believes that the pre-delivery correction will delay the Delivery of the Aircraft, Seller’s estimated period of such delay,

 

  (ii) that the Seller shall not be responsible, nor be deemed to be in default on account of any delay in Delivery of any Aircraft or otherwise in respect of the performance of this Agreement, due to the Seller’s undertaking to make such correction and provided further

 

  (iii) that, rather than accept a delay in the Delivery of any such Aircraft, the Buyer and the Seller may agree to deliver such Aircraft with subsequent correction of the defect by the Buyer at the Seller’s expense, or the Buyer may elect to accept Delivery and thereafter file a Warranty Claim as though the defect had become apparent immediately after Delivery of such Aircraft.

 

12.1.4.3 [***]

In addition to the remedies set forth in Clauses 12.1.4.1 and 12.1.4.2, the Seller will [***].

 

 

12.1.5 Warranty Claim Requirements

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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The Buyer’s remedy and the Seller’s obligation and liability under this Clause 12.1 with respect to any warranty claim submitted by the Buyer (each a “ Warranty Claim ”) are subject to the following conditions:

 

  (i) the defect having become apparent within the Warranty Period;

 

  (ii) the Buyer having filed a warranty claim within 90 days of discovering the defect;

 

  (iii) the Buyer having submitted to the Seller reasonable evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter embraced within this Clause 12.1 and that such defect has not resulted from any act or omission of the Buyer, including but not limited to, any failure to operate and maintain the affected Aircraft or part thereof in accordance with the standards set forth in Clause 12.1.10 or from any act or omission of any third party;

 

  (iv) the Seller having received a Warranty Claim complying with the provisions of Clause 12.1.6 below.

 

12.1.6 Warranty Administration

The warranties set forth in Clause 12.1 will be administered as hereinafter provided for:

 

12.1.6.1 Claim Determination

Determination as to whether any claimed defect in any Warranted Part is a valid Warranty Claim will reasonably be made by the Seller and will be reasonably based upon the claim details, reports from the Seller’s Representatives, historical data logs, inspections, tests, findings during repair, defect analysis and other relevant documents.

 

12.1.6.2 Transportation Costs

The cost of transporting a Warranted Part claimed to be defective to the facilities designated by the Seller and for the return therefrom of a repaired or replaced Warranted Part will be [***], provided however, [***].

 

12.1.6.3 Return of an Aircraft

If the Buyer and the Seller mutually agree, prior to such return, that it is necessary to return an Aircraft to the Seller for consideration of a Warranty Claim, [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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12.1.6.4 On Aircraft Work by the Seller

If the Seller determines that a defect subject to this Clause 12.1 justifies the dispatch by the Seller of a working team to repair or correct such defect through the embodiment of one or several Seller’s Service Bulletins at the Buyer’s facilities, or if the Seller accepts the return of an Aircraft to perform or have performed such repair or correction, then the labor costs for such on-Aircraft work will [***].

The condition which has to be fulfilled for on-Aircraft work by the Seller is that, in the reasonable opinion of the Seller, the work necessitates the technical expertise of the Seller as manufacturer of the Aircraft.

If said condition is fulfilled and if the Seller is requested to perform the work, the Seller and the Buyer will agree on a schedule and place for the work to be performed.

 

12.1.6.5 Warranty Claim Substantiation

Each Warranty Claim filed by the Buyer under this Clause 12.1 will contain at least the following data:

 

  (a) description of defect and action taken, if any,

 

  (b) date of incident and/or removal date,

 

  (c) description of Warranted Part claimed to be defective,

 

  (d) part number,

 

  (e) serial number (if applicable),

 

  (f) position on Aircraft,

 

  (g) total flying hours or calendar time, as applicable, at the date of defect appearance,

 

  (h) time since last shop visit at the date of defect appearance,

 

  (i) Manufacturer Serial Number of the Aircraft and/or its registration,

 

  (j) Aircraft total flying hours and/or number of landings at the date of defect appearance,

 

  (k) Warranty Claim number,

 

  (l) date of Warranty Claim,

 

  (m) Delivery Date of Aircraft or Warranted Part to the Buyer,

Warranty Claims are to be addressed as follows:

AIRBUS

CUSTOMER SERVICES DIRECTORATE

WARRANTY ADMINISTRATION

Rond Point Maurice Bellonte

B.P. 33

F 31707 BLAGNAC CEDEX

FRANCE

 

12.1.6.6 Replacements

Replaced components, equipment, accessories or parts will become the Seller’s property.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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Title to and risk of loss of any Aircraft, component, accessory, equipment or part returned by the Buyer to the Seller will at all times remain with the Buyer, except that:

 

  (i) when the Seller has possession of a returned Aircraft, component, accessory, equipment or part to which the Buyer has title, the Seller will have such responsibility therefor as is chargeable by law to a bailee for hire, but the Seller will not be liable for loss of use, and;

 

  (ii) title to and risk of loss of a returned component, accessory, equipment or part will pass to the Seller upon shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor.

Upon the Seller’s shipment to the Buyer of any replacement component, accessory, equipment or part provided by the Seller pursuant to this Clause 12.1, title to and risk of loss of such replacement component, accessory, equipment or part will pass to the Buyer.

 

12.1.6.7 Rejection

The Seller will provide reasonable written substantiation in case of rejection of a Warranty Claim. In such event the Buyer will refund to the Seller reasonable inspection and test charges incurred in connection therewith.

 

12.1.6.8 Inspection

The Seller will have the right to inspect the affected Aircraft, documents and other records relating thereto in the event of any Warranty Claim under this Clause 12.1.

 

12.1.7 Inhouse Warranty

 

12.1.7.1 Seller’s Authorization

The Seller hereby authorizes the Buyer to repair Warranted Parts (“ Inhouse Warranty ”) subject to the terms of this Clause 12.1.7.

 

12.1.7.2 Conditions for Seller’s Authorization

The Buyer will be entitled to repair such Warranted Parts:

 

  (i) provided the Buyer notifies the Seller Representative of its intention to perform Inhouse Warranty repairs before any such repairs are started where the estimated cost of such repair is in excess of US$[***]. (US dollars – [***]. The Buyer’s notification will include sufficient detail regarding the defect, estimated labor hours and material to allow the

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  Seller to ascertain the reasonableness of the estimate. The Seller agrees to use all reasonable efforts to ensure a prompt response and will not unreasonably withhold authorization;

 

  (ii) provided adequate facilities and qualified personnel are available to the Buyer;

 

  (iii) provided repairs are performed in accordance with the Seller’s Technical Data or written instructions; and

 

  (iv) only to the extent specified by the Seller, or, in the absence of such specification, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause 12.1.10.

 

12.1.7.3 Seller’s Rights

The Seller will have the right to require the return of any Warranted Part, or any part removed therefrom, which is claimed to be defective if, in the reasonable judgment of the Seller, the nature of the claimed defect requires technical investigation. Such return will be subject to the provisions of Clause 12.1.6.2. Furthermore, the Seller will have the right to have a Seller Representative present during the disassembly, inspection and testing of any Warranted Part claimed to be defective, subject to such presence being practical and not unduly delaying the repair.

 

12.1.7.4 Inhouse Warranty Claim Substantiation

Claims for Inhouse Warranty credit will be filed within the time period set forth in 12.1.5 (ii) and will contain the same information as that required for Warranty Claims under Clause 12.1.6.5 and in addition will include:

 

  (a) a report of technical findings with respect to the defect,

 

  (b) for parts required to remedy the defect:

 

   

part numbers,

 

   

serial numbers (if applicable),

 

   

parts description,

 

   

quantity of parts,

 

   

unit price of parts,

 

   

related Seller’s or third party’s invoices (if applicable),

 

   

total price of parts,

 

  (c) detailed number of labor hours,

 

  (d) Inhouse Warranty Labor Rate,

 

  (e) total claim value.

 

12.1.7.5 Credit

The Buyer’s sole remedy and the Seller’s sole obligation and liability with respect to Inhouse Warranty Claims will be the credit to the Buyer’s account of an amount equal to the mutually agreed direct labor costs expended in performing the repair of a Warranted Part and to the direct costs of materials incorporated in said repair, determined as set forth below:

 

  (a) to determine direct labor costs, only manhours spent on removal from the Aircraft, disassembly, inspection, repair, reassembly, final inspection and test of the Warranted Part and reinstallation thereof on the Aircraft will be counted. Any manhours required for maintenance work concurrently being carried out on the Aircraft or the Warranted Part will not be included.

 

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  (b) The manhours counted as set forth above will be multiplied by an agreed labor rate of US $[***] (US Dollars [***]) [***] (“ Inhouse Warranty Labour Rate ”), which is deemed to represent the Buyer’s composite labor rate meaning the average hourly rate (excluding all fringe benefits, premium time allowances, social security charges, business taxes and the like) paid to the Buyer’s employees whose jobs are directly related to the performance of the repair.

The Inhouse Warranty Labor Rate is subject to annual adjustment by multiplication by the ratio [***]. For the purposes of this Clause 12.1.7.5 only, [***], defined in the Seller’s Price Revision Formula set forth in Part 1 of Exhibit C to the Agreement.

 

  (c) Direct material costs are determined by the prices at which the Buyer acquired such material, excluding any parts and materials used for overhaul and as may be furnished by the Seller at no charge.

 

12.1.7.6 Limitation

The Buyer will in no event be credited for repair costs (including labor and material) for any Warranted Part in excess of sixty-five per cent (65%) of the Seller’s current catalogue price for a replacement of such defective Warranted Part.

 

12.1.7.7 Scrapped Material

The Buyer will retain any defective Warranted Part beyond economic repair and any defective part removed from a Warranted Part during repair for a period of either one hundred and twenty (120) days after the date of completion of the repair or sixty (60) days after submission of a claim for Inhouse Warranty credit relating thereto, whichever is longer. Such parts will be returned to the Seller within thirty (30) days of receipt of the Seller’s request to that effect.

Notwithstanding the foregoing, the Buyer may scrap any such defective parts, which are beyond economic repair and not required for technical evaluation locally, with the agreement of the Seller Representative(s).

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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Scrapped Warranted Parts will be evidenced by a record of scrapped material certified by an authorized representative of the Buyer and will be kept in the Buyer’s file for a least the duration of the applicable Warranty Period.

 

12.1.8 Standard Warranty in case of Pooling or Leasing Arrangements

Without prejudice to Clause 21.1, the warranties provided for in this Clause 12.1 for any Warranted Part will accrue to the benefit of any airline in revenue service, other than the Buyer, if the Warranted Part enters into the possession of any such airline as a result of a pooling or leasing agreement between such airline and the Buyer, in accordance with the terms and subject to the limitations and exclusions of the foregoing warranties and to the extent permitted by any applicable law or regulations.

 

12.1.9 Warranty for Corrected, Replaced or Repaired Warranted Parts

Whenever any Warranted Part, which contains a defect for which the Seller is liable under Clause 12.1, has been corrected, replaced or repaired pursuant to the terms of this Clause 12.1, the period of the Seller’s warranty with respect to such corrected, repaired or replacement Warranted Part, whichever the case may be, will be the remaining portion of the original warranty or twelve (12) months, whichever is longer.

If a defect is attributable to a defective repair or replacement by the Buyer, a Warranty Claim with respect to such defect will be rejected, notwithstanding any subsequent correction or repair, and will immediately terminate the remaining warranties under this Clause 12.1 in respect of the affected Warranted Part.

 

12.1.10 Accepted Industry Standard Practices Normal Wear and Tear

The Buyer’s rights under this Clause 12.1 are subject to the Aircraft and each component, equipment, accessory and part thereof being maintained, overhauled, repaired and operated in accordance with accepted industry standard practices, all Technical Data and any other instructions issued by the Seller, the Suppliers and the Propulsion Systems Manufacturer and all applicable rules, regulations and directives of the relevant Aviation Authorities.

The Seller’s liability under this Clause 12.1 will not extend to normal wear and tear nor to:

 

  (i) any Aircraft or component, equipment, accessory or part thereof, which has been repaired, altered or modified after Delivery, except by the Seller or in a manner approved by the Seller;

 

  (ii) any Aircraft or component, equipment, accessory or part thereof, which has been operated in a damaged state;

 

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  (iii) any component, equipment, accessory and part from which the trademark, name, part or serial number or other identification marks have been removed.

 

12.1.11 DISCLAIMER OF SELLER LIABILITY

THE SELLER WILL NOT BE LIABLE FOR, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST, THE CLAIMS OF ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT, NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF WARRANTED PARTS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER OR THE SELLER.

 

12.2 Seller Service Life Policy

 

12.2.1 In addition to the warranties set forth in Clause 12.1, the Seller further agrees that should a Failure occur in any Item (as these terms are defined hereinbelow) that has not suffered from an extrinsic force, then, subject to the general conditions and limitations set forth in Clause 12.2.4, the provisions of this Clause 12.2 will apply.

For the purposes of this Clause 12.2:

 

  (i) Item ” means any item listed in Exhibit F;

 

  (ii) Failure ” means a breakage or defect that can reasonably be expected to occur on a fleetwide basis and which materially impairs the utility of the Item.

 

12.2.2 Periods and Seller’s Undertakings

Subject to the general conditions and limitations set forth in Clause 12.2.4, the Seller agrees that if a Failure occurs within [***] after the Delivery of said Aircraft, whichever will first occur, the Seller will, at its discretion and as promptly as practicable and with the Seller’s financial participation as hereinafter provided, either:

 

  (i) design and furnish to the Buyer a correction for such Item with a Failure and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or

 

  (ii) replace such Item.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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12.2.3 [ *** ]

Subject to the general conditions and limitations set forth in Clause 12.2.4, any part or Item that the Seller is required to furnish to the Buyer under this Service Life Policy in connection with the correction or replacement of an Item will be furnished to the Buyer [***].

 

12.2.4 General Conditions and Limitations

 

12.2.4.1 The undertakings set forth in this Clause 12.2 will be valid after the period of the Seller’s warranty applicable to an Item under Clause 12.1.

 

12.2.4.2 The Buyer’s remedies and the Seller’s obligations and liabilities under this Service Life Policy are subject to the prior compliance by the Buyer with the following conditions:

 

  (i) the Buyer will maintain log books and other historical records with respect to each Item, adequate to enable the Seller to determine whether the alleged Failure is covered by this Service Life Policy and, if so, to define the portion of the costs to be borne by the Seller in accordance with Clause 12.2.3;

 

  (ii) the Buyer will keep the Seller informed of any significant incidents relating to an Aircraft, howsoever occurring or recorded;

 

  (iii) the Buyer will comply with the conditions of Clause 12.1.10;

 

  (iv) the Buyer will implement specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs will be as compatible as possible with the Buyer’s operational requirements and will be carried out at the Buyer’s expense. Reports relating thereto will be regularly furnished to the Seller;

 

  (v) the Buyer will report any breakage or defect in a Item in writing to the Seller within sixty (60) days after such breakage or defect becomes apparent, whether or not said breakage or defect can reasonably be expected to occur in any other aircraft, and the Buyer will have provided to the Seller sufficient detail on the breakage or defect to enable the Seller to determine whether said breakage or defect is subject to this Service Life Policy.

 

12.2.4.3 Except as otherwise provided for in this Clause 12.2, any claim under this Service Life Policy will be administered as provided for in, and will be subject to the terms and conditions of, Clause 12.1.6.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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12.2.4.4 In the event of the Seller having issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary modification kit [ *** ] . If such a kit is so offered to the Buyer, then, to the extent of such Failure and any Failures that could ensue therefrom, the validity of the Seller’s commitment under this Clause 12.2 will be subject to the Buyer incorporating such modification in the relevant Aircraft, as promulgated by the Seller and in accordance with the Seller’s instructions, within a reasonable time.

 

12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER’S OBLIGATION UNDER THIS CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED FOR IN THIS CLAUSE 12.2. THE BUYER’S SOLE REMEDY AND RELIEF FOR THE NON-PERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY WILL BE IN A CREDIT FOR GOODS AND SERVICES (NOT INCLUDING AIRCRAFT), LIMITED TO THE AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY AND TO WHICH SUCH NON-PERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS CLAUSE 12.2 IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN CLAUSE 12.5, THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY.

 

12.3 Supplier Warranties and Service Life Policies

Prior to or at Delivery of the first Aircraft, the Seller will provide the Buyer, in accordance with the provisions of Clause 17, with the warranties and, where applicable, service life policies that the Seller has obtained for Supplier Parts pursuant to the Supplier Product Support Agreements.

 

12.3.1 Definitions

 

12.3.1.1 Supplier ” means any supplier of Supplier Parts.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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12.3.1.2 Supplier Part ” means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof and for which there exists a Supplier Product Support Agreement. For the sake of clarity, Propulsion Systems and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by suppliers with whom the Seller has no existing enforceable warranty agreements are not Supplier Parts.

 

12.3.1.3 Supplier Product Support Agreements ” means agreements between the Seller and Suppliers, as described in Clause 17.1.2, containing enforceable and transferable warranties and, in the case of landing gear suppliers, service life policies for selected structural landing gear elements.

 

12.3.2 Supplier’s Default

 

12.3.2.1 In the event of any Supplier, under any standard warranty obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect thereto and subject to (i) the Buyer using its best efforts to enforce its rights under such Supplier Service Life Policy and (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, then Clause 12.1 will apply to the extent (i) the same would have been applicable had such Supplier Part been a Warranted Part, and (ii) the Seller can reasonably perform said Supplier’s obligations,, except that the Supplier’s warranty period as indicated in the Supplier Product Support Agreement will apply.

 

12.3.2.2 In the event of any Supplier, under any Supplier Service Life Policy obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect thereto and subject to (i) the Buyer using its best efforts to enforce its rights under such Supplier Service Life Policy and (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, then Clause 12.2 will apply to the extent (i) the same would have been applicable had such Supplier Item been listed in Exhibit F, Seller Service Life Policy, and (ii) the Seller can reasonably perform said Supplier’s obligations, except that the Supplier’s Service Life Policy period as indicated in the Supplier Product Support Agreement will apply.

 

12.3.2.3 At the Seller’s request, the Buyer will assign to the Seller, and the Seller will be subrogated to, all of the Buyer’s rights against the relevant Supplier with respect to and arising by reason of such default and will provide reasonable assistance to enable the Seller to enforce the rights so assigned.

 

12.4 Interface Commitment

 

12.4.1 Interface Problem

If the Buyer experiences any technical problem in the operation of an Aircraft or its systems due to a malfunction, the cause of which, after due and reasonable investigation, is not readily identifiable by the Buyer but which the Buyer reasonably believes to be attributable to the design characteristics of one or more components of the Aircraft (“ Interface Problem ”), the Seller will, if so requested by the Buyer, and without additional charge to the Buyer except for

 

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transportation of the Seller’s or its designee’s personnel to the Buyer’s facilities, promptly conduct or have conducted an investigation and analysis of such problem to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible. The Buyer will furnish to the Seller all data and information in the Buyer’s possession relevant to the Interface Problem and will cooperate with the Seller in the conduct of the Seller’s investigations and such tests as may be required.

At the conclusion of such investigation, the Seller will promptly advise the Buyer in writing of the Seller’s opinion as to the cause or causes of the Interface Problem and the Seller’s recommendations as to corrective action.

 

12.4.2 Seller’s Responsibility

If the Seller determines that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller will, if so requested by the Buyer and pursuant to the terms and conditions of Clause 12.1, correct the design of such Warranted Part to the extent of the Seller’s obligation as defined in Clause 12.1.

 

12.4.3 Supplier’s Responsibility

If the Seller determines that the Interface Problem is primarily attributable to the design of any Supplier Part, the Seller will, if so requested by the Buyer, reasonably assist the Buyer in processing any warranty claim the Buyer may have against the Supplier.

 

12.4.4 Joint Responsibility

If the Seller determines that the Interface Problem is attributable partially to the design of a Warranted Part and partially to the design of any Supplier Part, the Seller will, if so requested by the Buyer, seek a solution to the Interface Problem through cooperative efforts of the Seller and any Supplier involved.

The Seller will promptly advise the Buyer of such corrective action as may be proposed by the Seller and any such Supplier. Such proposal will be consistent with any then existing obligations of the Seller hereunder and of any such Supplier towards the Buyer. Such corrective action, unless reasonably rejected by the Buyer, will constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Supplier with respect to such Interface Problem.

 

12.4.5 General

 

12.4.5.1 All requests under this Clause 12.4 will be directed to both the Seller and the affected Supplier.

 

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12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause will not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Agreement.

 

12.4.5.3 All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 will be deemed to be delivered under this Agreement and will be subject to the terms, covenants and conditions set forth in this Clause 12 and in Clause 22.11.

 

12.5 Exclusivity of Warranties

THIS CLAUSE 12 SETS FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE DELIVERED BY THE SELLER UNDER THIS AGREEMENT.

THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE DELIVERED BY THE SELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:

 

  (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE;

 

  (2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

 

  (3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;

 

  (4)

ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING,

 

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  BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;

 

  (5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;

 

  (6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;

 

  (7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:

 

  (a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;

 

  (b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;

 

  (c) LOSS OF PROFITS AND/OR REVENUES;

 

  (d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.

THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12 WILL REMAIN IN FULL FORCE AND EFFECT.

FOR THE PURPOSES OF THIS CLAUSE 12.5, THE “SELLER” SHALL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS, SUBCONTRACTORS, AND AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.

 

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12.6 Duplicate Remedies

The remedies provided to the Buyer under Clause 12.1 and Clause 12.2 as to any defect in respect of the Aircraft or any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Clause 12 for any particular defect for which remedies are provided under this Clause 12; provided, however, that the Buyer will not be entitled to elect a remedy under both Clause 12.1 and Clause 12.2 for the same defect. The Buyer’s rights and remedies herein for the nonperformance of any obligations or liabilities of the Seller arising under these warranties will be in monetary damages limited to the amount the Buyer expends in procuring a correction or replacement for any covered part subject to a defect or nonperformance covered by this Clause 12, and the Buyer will not have any right to require specific performance by the Seller.

 

12.7 Negotiated Agreement

The Buyer specifically recognizes that:

 

  (i) the Specification has been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of aircraft used in public transportation and as such is a professional within the same industry as the Seller;

 

  (ii) this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer; and

 

  (iii) the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the waiver, release and renunciation by the Buyer set forth in Clause 12.5.

 

12.8 Disclosure to Third Party Entity

In the event of the Buyer intending to designate a third party entity (a “ Third Party Entity ”) to administrate this Clause 12, the Buyer will notify the Seller of such intention prior to any disclosure of this Clause to the selected Third Party Entity and will cause such Third Party Entity to enter into a confidentiality agreement and or any other relevant documentation with the Seller solely for the purpose of administrating this Clause 12.

 

12.9 Transferability

Without prejudice to Clause 21.1, the Buyer’s rights under this Clause 12 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Seller’s prior written consent, which will not be unreasonably withheld.

 

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Any transfer in violation of this Clause 12.9 will, as to the particular Aircraft involved, void the rights and warranties of the Buyer under this Clause 12 and any and all other warranties that might arise under or be implied in law.

 

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13 PATENT AND COPYRIGHT INDEMNITY

 

13.1 Indemnity

 

13.1.1 Subject to the provisions of Clause 13.2.3, the Seller will indemnify the Buyer from and against any damages, costs and/or expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Airc r aft) resulting from any infringement or claim of infringement by the Airframe (or any part or software installed therein at Delivery) of:

 

  (i) any British, French, German, Spanish or U.S. patent;

and

 

  (ii) any patent issued under the laws of any other country in which the Buyer may lawfully operate the Aircraft, provided that :

 

  (1) from the time of design of such Airframe, accessory, equipment and/or part and until infringement claims are resolved, such country and the flag country of the Aircraft are each a party to the Chicago Convention on International Civil Aviation of December 7, 1944, and are each fully entitled to all benefits of Article 27 thereof,

or in the alternative,

 

  (2) from such time of design and until infringement claims are resolved, such country and the flag country of the Aircraft are each a party to the International Convention for the Protection of Industrial Property of March 20, 1883 (“Paris Convention”);

and

 

  (iii) in respect of computer software installed on the Aircraft, any copyright, provided that the Seller’s obligation to indemnify will be limited to infringements in countries which, at the time of infringement, are members of The Berne Union and recognize computer software as a “work” under the Berne Convention.

 

13.1.2 Clause 13.1.1 will not apply to

 

  (i) Buyer Furnished Equipment or Propulsion Systems; or

 

  (ii) parts not the subject of a Supplier Product Support Agreement ; or

 

  (iii) software not developed or created by the Seller.

 

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13.1.3 In the event that the Buyer, due to circumstances contemplated in Clause 13.1.1, is prevented from using the Aircraft (whether by a valid judgment of a court of competent jurisdiction or by a settlement arrived at between claimant, Seller and Buyer), the Seller will at its discretion and expense either:

 

  (i) procure for the Buyer the right to use the Aircraft to the Buyer; or

 

  (ii) replace the infringing part of the Aircraft as soon as possible with a non-infringing substitute complying in all other respects with the requirements of this Agreement.

 

13.2 Administration of Patent and Copyright Indemnity Claims

 

13.2.1 If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer will:

 

  (i) forthwith notify the Seller giving particulars thereof;

 

  (ii) furnish to the Seller all data, papers and records within the Buyer’s control or possession relating to such patent or claim;

 

  (iii) refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) will prevent the Buyer from paying such sums as may be required in order to obtain the release of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice;

 

  (iv) fully co-operate with, and render all such assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim;

 

  (v) act in such a way as to mitigate damages, costs and expenses and / or reduce the amount of royalties which may be payable.

 

13.2.2 The Seller will be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Seller’s opinion, it deems proper.

 

13.2.3 The Seller’s liability hereunder will be conditional upon the strict and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright.

THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE OBLIGATIONS AND LIABILITIES OF THE SELLER UNDER THIS CLAUSE 13 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND

 

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LIABILITIES ON THE PART OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING FROM OR WITH RESPECT TO LOSS OF USE OR REVENUE OR CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY ACTUAL OR ALLEGED PATENT INFRINGEMENT OR THE LIKE BY ANY AIRFRAME, PART OR SOFTWARE OR ANY INTELLECTUAL PROPERTY INSTALLED THEREIN AT DELIVERY, OR THE USE OR SALE THEREOF, PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS CLAUSE WILL REMAIN IN FULL FORCE AND EFFECT. THIS INDEMNITY AGAINST PATENT AND COPYRIGHT INFRINGEMENTS WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER.

 

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14 TECHNICAL DATA AND SOFTWARE SERVICES

 

14.1 Scope

This Clause 14 covers the terms and conditions for the supply of technical data (“hereinafter “ Technical Data ”) and software services described hereunder (hereinafter “ Software Services ”) to support the Aircraft operation.

 

14.1.1 The Technical Data will be supplied in the English language using the aeronautical terminology in common use.

 

14.1.2 Range, form, type, format, quantity and delivery schedule of the Technical Data to be provided under this Agreement are outlined in Exhibit G hereto.

 

14.2 Aircraft Identification for Technical Data

 

14.2.1 For those Technical Data that are customized to the Buyer’s Aircraft, the Buyer agrees to the allocation of fleet serial numbers (“ Fleet Serial Numbers ”) in the form of block of numbers selected in the range from 001 to 999.

 

14.2.2 The sequence will not be interrupted unless two (2) different Propulsion Systems or two (2) different models of Aircraft are selected.

 

14.2.3 The Buyer will indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the delivery schedule set forth in Clause 9.1 no later than [***] before the Scheduled Delivery Month of the first Aircraft. Neither the designation of such Fleet Serial Numbers nor the subsequent allocation of the Fleet Serial Numbers to Manufacturer Serial Numbers for the purpose of producing certain customized Technical Data will constitute any property, insurable or other interest of the Buyer in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement.

The customized Technical Data that are affected thereby are the following:

 

   

Aircraft Maintenance Manual,

 

   

Illustrated Parts Catalogue,

 

   

Trouble Shooting Manual,

 

   

Aircraft Wiring Manual,

 

   

Aircraft Schematics Manual,

 

   

Aircraft Wiring Lists.

 

14.3 Integration of Equipment Data

 

14.3.1 Supplier Equipment

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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Information, including revisions, relating to Supplier equipment that is installed on the Aircraft at Delivery, or through Airbus Service Bulletins thereafter, will be introduced into the customized Technical Data to the extent necessary for understanding of the affected systems, at no additional charge to the Buyer.

 

14.3.2 Buyer Furnished Equipment

 

14.3.2.1 The Seller will introduce Buyer Furnished Equipment data for Buyer Furnished Equipment that is installed on the Aircraft by the Seller (hereinafter “ BFE Data ”) into the customized Technical Data, [***] for the initial issue of the Technical Data provided at or before Delivery of the first Aircraft, provided such BFE Data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.6.

 

14.3.2.2 The Buyer will supply the BFE Data to the Seller at least six (6) months prior to the Scheduled Delivery Month of the first Aircraft.

 

14.3.2.3 The Buyer will supply the BFE Data to the Seller in English and in compliance with the then applicable revision of ATA iSpecification 2200 (iSpec 2200), Information Standards for Aviation Maintenance.

 

14.3.2.4 The Buyer and the Seller will agree on the requirements for the provision to the Seller of BFE Data for “on-aircraft maintenance”, such as but not limited to timeframe, media and format in which the BFE Data will be supplied to the Seller, in order to manage the BFE Data integration process in an efficient, expeditious and economic manner.

 

14.3.2.5 The BFE Data will be delivered in digital format (SGML) and/or in Portable Document Format (PDF), as agreed between the Buyer and the Seller.

 

14.3.2.6 All costs related to the delivery to the Seller of the applicable BFE Data will be borne by the Buyer.

 

14.4 Supply

 

14.4.1 Technical Data will be supplied on-line and/or off-line, as set forth in Exhibit G hereto.

 

14.4.2 The Buyer will not receive any credit or compensation for any unused or only partially used Technical Data supplied pursuant to this Clause 14.

 

14.4.3 Delivery

 

14.4.3.1 For Technical Data provided off-line, such Technical Data and corresponding revisions will be sent to up to two (2) addresses as indicated by the Buyer.

 

14.4.3.2 Technical Data provided off-line will be delivered by the Seller at the Buyer’s named place of destination under DAP conditions. The term Delivery At Place (“ DAP ”) is defined by publication n° 715 of Incoterms 2010 published by the International Chamber of Commerce in January 2011.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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14.4.3.3 The Technical Data will be delivered according to a mutually agreed schedule to correspond with the Deliveries of Aircraft. The Buyer will provide no less than [***] notice when requesting a change to such delivery schedule.

 

14.4.4 It will be the responsibility of the Buyer to coordinate and satisfy local Aviation Authorities’ requirements with respect to Technical Data. Reasonable quantities of such Technical Data will be supplied by the Seller at no charge to the Buyer at the Buyer’s named place of destination.

Notwithstanding the foregoing, and in agreement with the relevant Aviation Authorities, preference will be given to the on-line access to such Buyer’s Technical Data through the Airbus customer portal “AirbusWorld”.

 

14.5 Revision Service

For each firmly ordered Aircraft covered under this Agreement, revision service for the Technical Data will be provided [***] for a period of [***] (each a “Revision Service Period ).

Thereafter revision service will be provided in accordance with the terms and conditions set forth in the Seller’s then current Customer Services Catalog.

 

14.6 Service Bulletins (SB) Incorporation

During Revision Service Period and upon the Buyer’s request, which will be made within two years after issuance of the applicable Service Bulletin, Seller Service Bulletin information will be incorporated into the Technical Data, provided that the Buyer notifies the Seller through the relevant AirbusWorld on-line Service Bulletin Reporting application that it intends to accomplish such Service Bulletin. The split effectivity for the corresponding Service Bulletin will remain in the Technical Data until notification from the Buyer that embodiment has been completed on all of the Buyer’s Aircraft. The foregoing is applicable for Technical Data relating to maintenance only. For operational Technical Data either the pre or post Service Bulletin status will be shown.

 

14.7 Technical Data Familiarization

Upon request by the Buyer, the Seller will provide up to one (1) week of Technical Data familiarization training at the Seller’s or the Buyer’s facilities. The basic familiarization course is tailored for maintenance and engineering personnel.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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14.8 Customer Originated Changes (COC)

If the Buyer wishes to introduce Buyer originated data (hereinafter “ COC Data ”) into any of the customized Technical Data that are identified as eligible for such incorporation in the Seller’s then current Customer Services Catalog, the Buyer will notify the Seller of such intention.

The incorporation of any COC Data will be performed under the methods and tools for achieving such introduction and the conditions specified in the Seller’s then current Customer Services Catalog.

 

14.9 AirN@v Family products

 

14.9.1 The Technical Data listed herebelow are provided on DVD and include integrated software (hereinafter together referred to as “ AirN@v Family ”).

 

14.9.2 The AirN@v Family covers several Technical Data domains, reflected by the following AirN@v Family products:

 

   

AirN@v / Maintenance,

 

   

AirN@v / Planning,

 

   

AirN@v / Repair,

 

   

AirN@v / Workshop,

 

   

AirN@v / Associated Data,

 

   

AirN@v / Engineering.

 

14.9.3 Further details on the Technical Data included in such products are set forth in Exhibit G.

 

14.9.4 The licensing conditions for the use of AirN@v Family integrated software will be as set forth in a separate agreement (the “ End-User License Agreement for Airbus Software ”) to be executed by the parties prior to Delivery of the first Aircraft.

 

14.9.5 The revision service and the license to use AirN@v Family products will be granted [***] for the duration of the corresponding Revision Service Period. At the end of such Revision Service Period, the yearly revision service for AirN@v Family products and the associated license fee will be provided to the Buyer under the commercial conditions set forth in the Seller’s then current Customer Services Catalog.

 

14.10 On-Line Technical Data

 

14.10.1 The Technical Data defined in Exhibit G as being provided on-line will be made available to the Buyer through the Airbus customer portal AirbusWorld (“ AirbusWorld ”), as set forth in a separate agreement to be executed by the parties prior to Delivery of the first Aircraft.

 

14.10.2 Such provision will be at no cost for the duration of the corresponding Revision Service Period.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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14.10.3 Access to AirbusWorld will be subject to the “General Terms and Conditions of Access to and Use of AirbusWorld” (hereinafter the “ GTC ”), as set forth in a separate agreement to be executed by the parties prior to Delivery of the first Aircraft.

 

14.10.4 The list of the Technical Data provided on-line may be extended from time to time.

For any Technical Data which is or becomes available on-line, the Seller reserves the right to eliminate other formats for the concerned Technical Data.

 

14.10.5 Access to AirbusWorld will be granted [***] for the Technical Data related to the Aircraft which will be operated by the Buyer.

 

14.10.6 For the sake of clarification, Technical Data accessed through AirbusWorld – which access will be covered by the terms and conditions set forth in the GTC – will remain subject to the conditions of this Clause 14.

In addition, should AirbusWorld provide access to Technical Data in software format, the use of such software will be subject to the conditions of the End-User Agreement for Airbus Software.

 

14.11 Waiver, Release and Renunciation

The Seller warrants that the Technical Data are prepared in accordance with the state of art at the date of their development. Should any Technical Data prepared by the Seller contain a non-conformity or defect, the sole and exclusive liability of the Seller will be to take all reasonable and proper steps to correct such Technical Data. Irrespective of any other provisions herein, no warranties of any kind will be given for the Customer Originated Changes, as set forth in Clause 14.8.

THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED BELOW FOR THE PURPOSES OF THIS CLAUSE) AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 14 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND, IN ANY TECHNICAL DATA OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:

 

  A. ANY WARRANTY AGAINST HIDDEN DEFECTS;

 

  B. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  C. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE;

 

  D. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR IMPUTED; AND

 

  E. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THIS AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES;

PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.

FOR THE PURPOSES OF THIS CLAUSE 14, THE “SELLER” WILL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS AND SUBCONTRACTORS, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.

 

14.12 Proprietary Rights

 

14.12.1 All proprietary rights relating to Technical Data, including but not limited to patent, design and copyrights, will remain with the Seller and/or its Affiliates, as the case may be.

These proprietary rights will also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.

 

14.12.2 Whenever this Agreement and/or any Technical Data provides for manufacturing by the Buyer, the consent given by the Seller will not be construed as any express or implicit endorsement or approval whatsoever of the Buyer or of the manufactured products. The supply of the Technical Data will not be construed as any further right for the Buyer to design or manufacture any Aircraft or part thereof, including any spare part.

 

14.13 Performance Engineer’s Program

 

14.13.1 In addition to the Technical Data provided under Clause 14, the Seller will provide to the Buyer Software Services, which will consist of the Performance Engineer’s Programs (“ PEP ”) for the Aircraft type covered under this Agreement. Such PEP is composed of software components and databases, and its use is subject to the license conditions set forth in the End-User License Agreement for Airbus Software.

 

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14.13.2 Use of the PEP will be limited to one (1) copy to be used on the Buyer’s computers for the purpose of computing performance engineering data. The PEP is intended for use on ground only and will not be placed or installed on board the Aircraft.

 

14.13.3 The license to use the PEP and the revision service will be provided [***] for the duration of the corresponding Revision Service Period as set forth in Clause 14.5.

 

14.13.4 At the end of such PEP Revision Service Period, the PEP will be provided to the Buyer at the standard commercial conditions set forth in the Seller’s then current Customer Services Catalog.

 

14.14 Future Developments

The Seller continuously monitors technological developments and applies them to Technical Data, document and information systems’ functionalities, production and methods of transmission.

The Seller will implement and the Buyer will accept such new developments, it being understood that the Buyer will be informed in due time by the Seller of such new developments and their application and of the date by which the same will be implemented by the Seller.

 

14.15 Confidentiality

 

14.15.1 This Clause, the Technical Data, the Software Services and their content are designated as confidential. All such Technical Data and Software Services are provided to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller, except as permitted therein or pursuant to any government or legal requirement imposed upon the Buyer.

 

14.15.2 If the Seller authorizes the disclosure of this Clause or of any Technical Data or Software Services to third parties either under this Agreement or by an express prior written authorization and specifically, where the Buyer intends to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a “ Third Party ”), the Buyer will notify the Seller of such intention prior to any disclosure of this Clause and/or the Technical Data and/or the Software Services to such Third Party.

The Buyer hereby undertakes to cause such Third Party to agree to be bound by the conditions and restrictions set forth in this Clause 14 with respect to the disclosed Clause, Technical Data or Software Services and will in particular cause such Third Party to enter into a confidentiality agreement with the Seller and appropriate licensing conditions, and to commit to use the Technical Data solely for the purpose of maintaining the Buyer’s Aircraft and the Software Services exclusively for processing the Buyer’s data.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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14.16 Transferability

Without prejudice to Clause 21.1, the Buyer’s rights under this Clause 14 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Seller’s prior written consent.

Any transfer in violation of this Clause 14.16 will, as to the particular Aircraft involved, void the rights and warranties of the Buyer under this Clause 14 and any and all other warranties that might arise under or be implied in law.

 

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15 SELLER REPRESENTATIVE SERVICES

The Seller will provide [***] to the Buyer the services described in this Clause 15, at the Buyer’s main base or at other locations to be mutually agreed.

 

15.1 Customer Support Representative(s)

 

15.1.1 The Seller will provide [***] to the Buyer the services of Seller customer support representative(s), as defined in Appendix A to this Clause 15 (each a “ Seller Representative ”), at the Buyer’s main base or such other locations as the parties may agree.

 

15.1.2 In providing the services as described hereabove, any Seller Representatives, or any Seller employee(s) providing services to the Buyer hereunder, are deemed to be acting in an advisory capacity only and at no time will they be deemed to be acting as Buyer’s employees, contractors or agents, either directly or indirectly.

 

15.1.3 The Seller will provide to the Buyer an annual written accounting of the consumed man-months and any remaining man-month balance from the allowance defined in Appendix A to this Clause 15. Such accounting will be deemed final and accepted by the Buyer unless the Seller receives written objection from the Buyer within thirty (30) calendar days of receipt of such accounting.

 

15.1.4 In the event of a need for Aircraft On Ground (“ AOG ”) technical assistance after the end of the assignment referred to in Appendix A to this Clause 15, the Buyer will have non-exclusive access to:

 

  (a) AIRTAC (Airbus Technical AOG Center);

 

  (b) The Seller Representative network closest to the Buyer’s main base. A list of contacts of the Seller Representatives closest to the Buyer’s main base will be provided to the Buyer.

As a matter of reciprocity, the Buyer agrees that Seller Representative(s) may provide services to other airlines during any assignment with the Buyer.

 

15.1.5 Should the Buyer request Seller Representative services exceeding the allocation specified in Appendix A to this Clause 15, the Seller may provide such additional services subject to terms and conditions to be mutually agreed.

 

15.1.6 The Seller will cause similar services to be provided by representatives of the Propulsion Systems Manufacturer and Suppliers, when necessary and applicable.

 

15.2 Buyer’s Support

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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15.2.1 From the date of arrival of the first Seller Representative and for the duration of the assignment, the Buyer will provide free of charge a suitable, lockable office, conveniently located with respect to the Buyer’s maintenance facilities, with complete office furniture and equipment including telephone, internet, email and facsimile connections for the sole use of the Seller Representative(s). All related communication costs will be borne by the Seller upon receipt by the Seller of all relevant justifications; however the Buyer will not impose on the Seller any charges other than the direct cost of such communications.

 

15.2.2 The Buyer will [***].

 

15.2.3 The Buyer will also [***].

 

15.2.4 [***].

 

15.2.5 Absence of an assigned Seller Representative during normal statutory vacation periods will be covered by other seller representatives on the same conditions as those described in Clause 15.1.4, and such services will be counted against the total allocation provided in Appendix A hereto.

 

15.2.6 The Buyer will assist the Seller in obtaining from the civil authorities of the Buyer’s country those documents that are necessary to permit the Seller Representative to live and work in the Buyer’s country. Failure of the Seller to obtain the necessary documents will relieve the Seller of any obligation to the Buyer under the provisions of Clause 15.1.

 

15.2.7 The Buyer will reimburse to the Seller charges, taxes, duties, imposts or levies of any kind whatsoever, imposed by the authorities of the Buyer’s country upon:

 

   

the entry into or exit from the Buyer’s country of the Seller Representatives and their families,

 

   

the entry into or the exit from the Buyer’s country of the Seller Representatives and their families’ personal property,

 

   

the entry into or the exit from the Buyer’s country of the Seller’s property, for the purpose of providing the Seller Representatives services.

 

15.3 Withdrawal of the Seller Representative

The Seller will have the right to withdraw its assigned Seller Representatives as it sees fit if conditions arise, which are in the Seller’s opinion dangerous to their safety or health or prevent them from fulfilling their contractual tasks.

 

15.4 Indemnities

INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET FORTH IN CLAUSE 19.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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APPENDIX A TO CLAUSE 15

SELLER REPRESENTATIVE ALLOCATION

The Seller Representative allocation provided to the Buyer pursuant to Clause 15.1 is defined hereunder.

 

1 The Seller will provide to the Buyer Seller Representative services at the Buyer’s main base or at other locations to be mutually agreed, for:

[***].

 

2 For the sake of clarification, such Seller Representatives’ services will include initial Aircraft Entry Into Service ( EIS ) assistance and sustaining support services.

 

3 The number of the Seller Representatives assigned to the Buyer at any one time will be mutually agreed, but will at no time exceed three (3) Seller Representatives.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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16 TRAINING SUPPORT AND SERVICES

 

16.1 General

 

16.1.1 This Clause 16 sets forth the terms and conditions for the supply of training support and services for the Buyer’s personnel to support the Aircraft operation.

 

16.1.2 The range, quantity and validity of training to be provided [***] under this Agreement are covered in Appendix A to this Clause 16.

 

16.1.3 Scheduling of training courses covered in Appendix A will be mutually agreed during a training conference (the “ Training Conference ”) that will be held no later than nine (9) months prior to Delivery of the first Aircraft.

 

16.2 Training Location

 

16.2.1 The Seller will provide training at its training center in Blagnac, France, and/or in Hamburg, Germany, or will designate an affiliated training center in Miami, U.S.A., or Beijing, China (individually a “ Seller’s Training Center ” and collectively the “ Seller’s Training Centers ”).

 

16.2.2 If the unavailability of facilities or scheduling difficulties make training by the Seller at any Seller’s Training Center impractical, the Seller will ensure that the Buyer is provided with such training at another location designated by the Seller.

 

16.2.3.1 Upon the Buyer’s request, the Seller may also provide certain training at a location other than the Seller’s Training Centers, including one of the Buyer’s bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In such event, all additional charges listed in Clauses 16.5.2 and 16.5.3 will be borne by the Buyer.

 

16.2.3.2 If the Buyer requests training at a location as indicated in Clause 16.2.3.1 and requires such training to be an Airbus approved course, the Buyer undertakes that the training facilities will be approved prior to the performance of such training. The Buyer will, as necessary and with adequate time prior to the performance of such training, provide access to the training facilities set forth in Clause 16.2.3.1 to the Seller’s and the competent Aviation Authority’s representatives for approval of such facilities.

 

16.3 Training Courses

 

16.3.1 Training courses will be as described in the Seller’s customer services catalog (the “ Seller’s Customer Services Catalog ”). The Seller’s Customer Services Catalog also sets forth the minimum and maximum number of trainees per course.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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All training requests or training course changes made outside of the scope of the Training Conference will be submitted by the Buyer with a minimum of three (3) months prior notice.

 

16.3.2 The following terms and conditions will apply to training performed by the Seller:

 

  (i) Training courses will be the Seller’s standard courses as described in the Seller’s Customer Services Catalog valid at the time of execution of the course. The Seller will be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses. For the avoidance of doubt, such training equipment does not include provision of aircraft for the purpose of performing training,.

 

  (ii) The training equipment and the training curricula used for the training of flight, cabin and maintenance personnel will not be fully customized but will be configured in order to obtain the relevant Aviation Authority’s approval and to support the Seller’s training programs.

 

  (iii) Training data and documentation for trainees receiving the training at the Seller’s Training Centers will be provided free of charge. Training data and documentation will be marked “FOR TRAINING ONLY” and as such are supplied for the sole and express purpose of training; training data and documentation will not be revised.

 

16.3.3 When the Seller’s training courses are provided by the Seller’s instructors (individually an “ Instructor ” and collectively “ Instructors ”) the Seller will deliver a Certificate of Recognition or a Certificate of Course Completion (each a “ Certificate ”) or an attestation (an “ Attestation ”), as applicable, at the end of any such training course. Any such Certificate or Attestation will not represent authority or qualification by any Aviation Authority but may be presented to such Aviation Authority in order to obtain relevant formal qualification.

In the event of training courses being provided by a training provider selected by the Seller as set forth in Clause 16.2.2, the Seller will cause such training provider to deliver a Certificate or Attestation, which will not represent authority or qualification by any Aviation Authority, but may be presented to such Aviation Authority in order to obtain relevant formal qualification.

 

16.3.4.1 Should the Buyer wish to exchange any of the training courses provided under Appendix A hereto, the Buyer will place a request for exchange to this effect with the Seller. The Buyer may exchange, subject to the Seller’s confirmation, the training allowances granted under Appendix A to this Clause 16 of this Agreement as follows:

 

  (i) flight operations training courses as listed under Article 1 of Appendix A to this Clause 16 may be exchanged for any flight operations training courses described in the Seller’s Customer Services Catalog current at the time of the Buyer’s request;

 

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  (ii) maintenance training courses as listed under Article 3 of Appendix A to this Clause 16 may be exchanged for any maintenance training courses described in the Seller’s Customer Services Catalog current at the time of the Buyer’s request;

 

  (iii) should any one of the allowances granted thereunder (flight operations or maintenance) have been fully drawn upon, the Buyer will be entitled to exchange flight operations or maintenance training courses as needed against the remaining allowances.

The exchange value will be based on the Seller’s “Training Course Exchange Matrix” applicable at the time of the request for exchange and which will be provided to the Buyer at such time.

It is understood that the above provisions will apply to the extent that training allowances granted under Appendix A to this Clause 16 remain in credit to the full extent necessary to perform the exchange.

All requests to exchange training courses will be submitted by the Buyer with a minimum of three (3) months’ prior notice. The requested training will be subject to the Seller’s then existing planning constraints.

 

16.3.4.2 Should the Buyer use none or only part of the training to be provided pursuant to this Clause 16, no compensation or credit of any nature will be provided.

 

16.3.5.1 Should the Buyer decide to cancel or reschedule a training course, fully or partially, and irrespective of the location of the training, a minimum advance notification of at least [***] calendar days prior to the relevant training course start date is required.

 

16.3.5.2 If the notification occurs less than [***] but more than [***] calendar days prior to such training, a cancellation fee corresponding to [***] of such training will be, as applicable, either deducted from the training allowance defined in Appendix A to this Clause 16 or invoiced at the Seller’s then applicable price.

 

16.3.5.3 If the notification occurs less than forty five (45) calendar days prior to such training, a cancellation fee corresponding to [***] will be, as applicable, either deducted from the training allowance defined in Appendix A to this Clause 16 or invoiced at the Seller’s then applicable price.

 

16.3.5.4 All courses exchanged under Clause 16.3.4.1 will remain subject to the provisions of this Clause 16.3.5.

 

16.4 Prerequisites and Conditions

 

16.4.1 Training will be conducted in English and all training aids used during such training will be written in English using common aeronautical terminology.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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16.4.2 The Buyer hereby acknowledges that all training courses conducted pursuant to this Clause 16 are “Standard Transition Training Courses” and not “Ab Initio Training Courses”.

 

16.4.3 Trainees will have the prerequisite knowledge and experience specified for each course in the Seller’s Customer Services Catalog.

 

16.4.4.1 The Buyer will be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees.

 

16.4.4.2 The Seller reserves the right to verify the trainees’ proficiency and previous professional experience.

 

16.4.4.3 The Seller will provide to the Buyer during the Training Conference an “Airbus Pre-Training Survey” for completion by the Buyer for each trainee.

The Buyer will provide the Seller with an attendance list of the trainees for each course, with the validated qualification of each trainee, at the time of reservation of the training course and in no event any later than sixty (60) calendar days before the start of the training course. The Buyer will return concurrently thereto the completed Airbus Pre-Training Survey, detailing the trainees’ associated background. If the Seller determines through the Airbus Pre-Training Survey that a trainee does not match the prerequisites set forth in the Seller’s Customer Services Catalog, following consultation with the Buyer, such trainee will be withdrawn from the program or directed through a relevant entry level training (ELT) program, which will be at the Buyer’s expense.

 

16.4.4.4 If the Seller determines at any time during the training that a trainee lacks the required level, following consultation with the Buyer, such trainee will be withdrawn from the program or, upon the Buyer’s request, the Seller may be consulted to direct the above mentioned trainee(s), if possible, to any other required additional training, which will be at the Buyer’s expense.

 

16.4.5 The Seller will in no case warrant or otherwise be held liable for any trainee’s performance as a result of any training provided.

 

16.5 Logistics

 

16.5.1 Trainees

 

16.5.1.1 Living and travel expenses for the Buyer’s trainees will be borne by the Buyer.

 

16.5.1.2 It will be the responsibility of the Buyer to make all necessary arrangements relative to authorizations, permits and/or visas necessary for the Buyer’s trainees to attend the training courses to be provided hereunder. Rescheduling or cancellation of courses due to the Buyer’s failure to obtain any such authorizations, permits and/or visas will be subject to the provisions of Clauses 16.3.5.1 thru 16.3.5.3.

 

16.5.2 Training at External Location - Seller’s Instructors

 

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16.5.2.1.1 In the event of training being provided at the Seller’s request at any location other than the Seller’s Training Centers, as provided for in Clause 16.2.2, the expenses of the Seller’s Instructors will be borne directly by the Seller.

 

16.5.2.1.2 In the event of training being provided by the Seller’s Instructor(s) at any location other than the Seller’s Training Centers at the Buyer’s request, the Buyer will reimburse the Seller for all the expenses related to the assignment of such Seller Instructors and the performance of their duties as aforesaid.

 

16.5.2.2 Living Expenses

Except as provided for in Clause 16.5.2.1.1 above, the Buyer will [***].

Such perdiem will include, but will not be limited to, lodging, food and local transportation to and from the place of lodging and the training course location.

 

16.5.2.3 Air Travel

Except as provided for in Clause 16.5.2.1.1 above, the Buyer will reimburse the Seller for the airfares for each Seller Instructor and/or other Seller’s personnel providing support under this Clause 16, in confirmed business class to and from the Buyer’s designated training site and the Seller’s Training Centers, as such airfares are set forth in the Seller’s Customer Services Catalog current at the time of the corresponding training or support.

 

16.5.2.4 Buyer’s Indemnity

Except in case of gross negligence or willful misconduct of the Seller, the Seller will not be held liable to the Buyer for any delay or cancellation in the performance of any training outside of the Seller’s Training Centers associated with any transportation described in this Clause 16.5.2, and the Buyer will indemnify and hold harmless the Seller from any such delay and/or cancellation and any consequences arising therefrom.

 

16.5.3 Training Material and Equipment Availability - Training at External Location

Training material and equipment necessary for course performance at any location other than the Seller’s Training Centers or the facilities of a training provider selected by the Seller will be provided by the Buyer at its own cost in accordance with the Seller’s specifications.

Notwithstanding the foregoing, should the Buyer request the performance of a course at another location as per Clause 16.2.3.1, the Seller may, upon the Buyer’s request, provide the training material and equipment necessary for such course’s performance. Such provision will be at the Buyer’s expense.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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16.6 Flight Operations Training

The Seller will provide training for the Buyer’s flight operations personnel as further detailed in Appendix A to this Clause 16, including the courses described in this Clause 16.6.

 

16.6.1 Flight Crew Training Course

The Seller will perform a flight crew training course program for the Buyer’s flight crews, each of which will consist of two (2) crew members, who will be either captain(s) or first officer(s).

 

16.6.2 Base Flight Training

 

16.6.2.1 The Buyer will provide at its own cost its delivered Aircraft, or any other aircraft it operates, for any base flight training, which will consist of one (1) session per pilot, performed in accordance with the related Airbus training course definition (the “ Base Flight Training ”).

 

16.6.2.2 Should it be necessary to ferry the Buyer’s delivered Aircraft to the location where the Base Flight Training will take place, the additional flight time required for the ferry flight to and/or from the Base Flight Training field [***].

 

16.6.2.3 If the Base Flight Training is performed outside of the zone where the Seller usually performs such training, the ferry flight to the location where the Base Flight Training will take place will be performed by a crew composed of the Seller’s and/or the Buyer’s qualified pilots, in accordance with the relevant Aviation Authority’s regulations related to the place of performance of the Base Flight Training.

 

16.6.3 Flight Crew Line Initial Operating Experience

In order to assist the Buyer with initial operating experience after Delivery of the first Aircraft, the Seller will provide to the Buyer pilot Instructor(s) as set forth in Appendix A to this Clause 16.

Should the Buyer request, subject to the Seller’s consent, such Seller pilot Instructors to perform any other flight support during the flight crew line initial operating period, such as but not limited to line assistance, demonstration flight(s), ferry flight(s) or any flight(s) required by the Buyer during the period of entry into service of the Aircraft, it is understood that such flight(s) will be deducted from the flight crew line initial operating experience allowance set forth in Appendix A to this Clause 16 hereto.

It is hereby understood by the Parties that the Seller’s pilot Instructors will only perform the above flight support services to the extent they bear the relevant qualifications to do so.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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16.6.4 Type Specific Cabin Crew Training Course

The Seller will provide type specific training for cabin crews at one of the locations defined in Clause 16.2.1.

If the Buyer’s Aircraft is to incorporate special features, the type specific cabin crew training course will be performed no earlier than two (2) weeks before the scheduled Delivery Date of the Buyer’s first Aircraft.

 

16.6.5 Training on Aircraft

During any and all flights performed in accordance with this Clause 16.6, the Buyer will bear full responsibility for the aircraft upon which the flight is performed, including but not limited to any required maintenance, all expenses such as fuel, oil or landing fees and the provision of insurance in line with Clause 16.13.

The Buyer will assist the Seller, if necessary, in obtaining the validation of the licenses of the Seller’s pilots performing Base Flight Training or initial operating experience by the Aviation Authority of the place of registration of the Aircraft.

 

16.7 Performance / Operations Courses

The Seller will provide performance/operations training for the Buyer’s personnel as defined in Appendix A to this Clause 16.

The available courses will be listed in the Seller’s Customer Services Catalog current at the time of the course.

 

16.8 Maintenance Training

 

16.8.1 The Seller will provide maintenance training for the Buyer’s ground personnel as further set forth in Appendix A to this Clause 16.

The available courses will be as listed in the Seller’s Customer Services Catalog current at the time of the course.

The practical training provided in the frame of maintenance training will be performed on the training devices in use in the Seller’s Training Centers.

 

16.8.2 Practical Training on Aircraft

Notwithstanding Clause 16.8.1 above, upon the Buyer’s request, the Seller may provide Instructors for the performance of practical training on aircraft (“ Practical Training ”).

Irrespective of the location at which the training takes place, the Buyer will provide at its own cost an aircraft for the performance of the Practical Training.

Should the Buyer require the Seller’s Instructors to provide Practical Training at facilities selected by the Buyer, such training will be subject to prior approval of the facilities by the Seller. All costs related to such Practical Training, including but not limited to the Seller’s approval of the facilities, will be borne by the Buyer.

 

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The provision of a Seller Instructor for the Practical Training will be deducted from the trainee days allowance defined in Appendix A to this Clause 16, subject to the conditions detailed in Paragraph 4.4 thereof.

 

16.9 Supplier and Propulsion Systems Manufacturer Training

Upon the Buyer’s request, the Seller will provide to the Buyer the list of the maintenance and overhaul training courses provided by major Suppliers and the applicable Propulsion Systems Manufacturer on their respective products.

 

16.10 Proprietary Rights

All proprietary rights, including but not limited to patent, design and copyrights, relating to the Seller’s training data and documentation will remain with the Seller and/or its Affiliates and/or its Suppliers, as the case may be.

These proprietary rights will also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.

 

16.11 Confidentiality

The Seller’s training data and documentation are designated as confidential and as such are provided to the Buyer for the sole use of the Buyer, for training of its own personnel, who undertakes not to disclose the content thereof in whole or in part, to any third party without the prior written consent of the Seller, save as permitted herein or otherwise pursuant to any government or legal requirement imposed upon the Buyer.

In the event of the Seller having authorized the disclosure of any training data and documentation to third parties either under this Agreement or by an express prior written authorization, the Buyer will cause such third party to agree to be bound by the same conditions and restrictions as the Buyer with respect to the disclosed training data and documentation and to use such training data and documentation solely for the purpose for which they are provided.

 

16.12 Transferability

Without prejudice to Clause 21.1, the Buyer’s rights under this Clause 16 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Seller’s prior written consent.

 

16.13 Indemnities and Insurance

INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE TO THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.

 

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THE BUYER WILL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.

 

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APPENDIX A TO CLAUSE 16

TRAINING ALLOWANCE

For the avoidance of doubt, all quantities indicated below are the total quantities granted for all Aircraft firmly ordered, unless otherwise specified.

The contractual training courses defined in this Appendix A will be provided up to [***] after Delivery of the last Aircraft delivered under this Agreement.

Notwithstanding the above, flight operations training courses granted per firmly ordered Aircraft in this Appendix A will be provided by the Seller within a period starting [***] before and ending [***] after such Aircraft Delivery.

Any deviation to such training delivery schedule will be mutually agreed between the Buyer and the Seller.

 

1 FLIGHT OPERATIONS TRAINING

Airbus Pilot Instructor Course (APIC)

The Seller will provide to the Buyer transition Airbus Pilot Instructor Course(s) (APIC), for flight and synthetic instruction, [***]. APIC courses will be performed in groups of two (2) trainees.

Such trainees will have the ability to observe or audit any other training program conducted with the Buyer’s employees in attendance.

 

2 MAINTENANCE TRAINING

The Seller will provide to the Buyer [***].

 

3 TRAINEE DAYS ACCOUNTING

Trainee days are counted as follows:

 

3.1 For instruction at the Seller’s Training Centers: one (1) day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees originally registered at the beginning of the course will be counted as the number of trainees to have taken the course.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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3.2 For instruction outside of the Seller’s Training Centers: one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of twelve (12) trainee days, except for structure maintenance training course(s).

 

3.3 For structure maintenance training courses outside the Seller’s Training Center(s), one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or the minimum number of trainees as indicated in the Seller’s Customer Services Catalog.

 

3.4 For practical training, whether on training devices or on aircraft, one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of six (6) trainee days.

 

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17 - EQUIPMENT SUPPLIER PRODUCT SUPPORT

 

17.1 Equipment Supplier Product Support Agreements

 

17.1.1 The Seller has obtained enforceable and transferable product support agreements from Suppliers of Supplier Parts, the benefit of which is hereby accepted by the Buyer. Said agreements become enforceable as soon as and for as long as an operator is identified as an Airbus aircraft operator.

 

17.1.2 These agreements are based on the “World Airlines Suppliers Guide”, are made available to the Buyer through the SPSA Application, and include Supplier commitments as contained in the Supplier Product Support Agreements which include the following provisions:

 

17.1.2.1 Technical data and manuals required to operate, maintain, service and overhaul the Supplier Parts will be prepared in accordance with the applicable provisions of ATA Specification including revision service and be published in the English language. The Seller will recommend that a software user guide, where applicable, be supplied in the form of an appendix to the Component Maintenance Manual. Such data will be provided in compliance with the applicable ATA Specification;

 

17.1.2.2 Warranties and guarantees, including standard warranties. In addition, landing gear Suppliers will provide service life policies for selected structural landing gear elements;

 

17.1.2.3 Training to ensure efficient operation, maintenance and overhaul of the Supplier Parts for the Buyer’s instructors, shop and line service personnel;

 

17.1.2.4 Spares data in compliance with ATA iSpecification 2200, initial provisioning recommendations, spare parts and logistic service including routine and expedite deliveries;

 

17.1.2.5 Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier Parts as well as required tooling and spares provisioning.

 

17.2 Supplier Compliance

The Seller will monitor Suppliers’ compliance with support commitments defined in the Supplier Product Support Agreements and will, if necessary, jointly take remedial action with the Buyer.

 

17.3 Nothing in this Clause 17 shall be construed to prevent or limit the Buyer from entering into direct negotiations with a Supplier with respect to different or additional terms and conditions applicable to Suppliers Parts selected by the Buyer to be installed on the Aircraft.

 

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17.4 Familiarization Training

Upon the Buyer’s request, the Seller will provide the Buyer with Supplier Product Support Agreements familiarization training at the Seller’s facilities in Blagnac, France. An on-line training module will be further available through AirbusWorld, access to which will be subject to the “General Terms and Conditions of Access to and Use of AirbusWorld” (hereinafter the “ GTC ”), as set forth in Clause 14.10.4.

 

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18 - BUYER FURNISHED EQUIPMENT

 

18.1 Administration

 

18.1.1.1 In accordance with the Specification, the Seller will install those items of equipment that are identified in the Specification as being furnished by the Buyer (“ Buyer Furnished Equipment ” or “ BFE ”), provided that the BFE and the supplier of such BFE are referred to in the Airbus BFE Product Catalog valid at the time the BFE Supplier is selected (the “ BFE Supplier ”).

 

18.1.1.2 Notwithstanding the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to install BFE manufactured by a supplier who is not referred to in the Airbus BFE Product Catalog, the Buyer will so inform the Seller and the Seller will promptly conduct a feasibility study of the Buyer’s request, in order to consider approving such supplier, provided that such request is compatible with the associated Scheduled Delivery Month for the Buyer’s Aircraft. In addition, it is a prerequisite to such approval that the considered supplier is qualified by the Seller’s Aviation Authorities to produce equipment for installation on civil aircraft. Any approval of a supplier by the Seller will be performed at the Buyer’s expense. The Buyer will cause any BFE supplier approved under this Clause 18.1.1.2 (each an “ Approved BFE Supplier ”) to comply with the conditions set forth in this Clause 18 and specifically Clause 18.2.

Except for the specific purposes of this Clause 18.1.1.2, the term “BFE Supplier” will be deemed to include Approved BFE Suppliers.

 

18.1.2.1 The Seller will advise the Buyer of the dates by which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition encompassing a Declaration of Design and Performance (the “ BFE Engineering Definition ”). The Seller will provide to the Buyer and/or the BFE Supplier(s), within a commercially reasonable timeframe, the necessary interface documentation to enable the development of the BFE Engineering Definition.

The BFE Engineering Definition will include the description of the dimensions and weight of BFE, the information related to its certification and the information necessary for the installation and operation thereof, including when applicable 3D models compatible with the Seller’s systems. The Buyer will furnish, or cause the BFE Suppliers to furnish, the BFE Engineering Definition by the dates specified.

Thereafter, the BFE Engineering Definition will not be revised, except through an SCN executed in accordance with Clause 2.

 

18.1.2.2

The Seller will also provide to the Buyer, within thirty (30) days following the Initial Technical Coordination Meeting (“ITCM”), a schedule of dates and the shipping addresses for delivery of the BFE and, where requested by the Seller, additional spare BFE to permit installation in the Aircraft and Delivery of the Aircraft in accordance with the Aircraft Delivery Schedule. The Buyer will provide, or cause the BFE Suppliers to provide, the BFE by such dates in a

 

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  serviceable condition, in order to allow performance of any assembly, installation, test or acceptance process in accordance with the Seller’s industrial schedule. In order to facilitate the follow-up of the timely receipt of BFE, the Buyer will, upon the Seller’s request, provide to the Seller dates and references of all BFE purchase orders placed by the Buyer.

The Buyer will also provide, when requested by the Seller, at AIRBUS OPERATIONS S.A.S. works in TOULOUSE (FRANCE) and/or at AIRBUS OPERATIONS GmbH, Division Hamburger Flugzeugbau Works in HAMBURG (GERMANY) adequate field service including support from BFE Suppliers to act in a technical advisory capacity to the Seller in the installation, calibration and possible repair of any BFE.

 

18.1.3 Without prejudice to the Buyer’s obligations hereunder, in order to facilitate the development of the BFE Engineering Definition, the Seller will organize meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to participate in such meetings and to provide adequate technical and engineering expertise to reach decisions within the defined timeframe.

In addition, throughout the development phase and up to Delivery of the Aircraft to the Buyer, the Buyer agrees:

 

   

to monitor the BFE Suppliers and ensure that they will enable the Buyer to fulfil its obligations, including but not limited to those set forth in the Customization Milestone Chart;

 

   

that, should a timeframe, quality or other type of risk be identified at a given BFE Supplier, the Buyer will allocate resources to such BFE Supplier so as not to jeopardize the industrial schedule of the Aircraft;

 

   

for major BFE, including, but not being limited to, seats, galleys and IFE (“ Major BFE ”) to participate on a mandatory basis in the specific meetings that take place between BFE Supplier selection and BFE delivery, namely:

 

   

Preliminary Design Review (“ PDR ”),

 

   

Critical Design Review (“ CDR ”);

 

   

to attend the First Article Inspection (“ FAI ”) for the first shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer will delegate the FAI to the BFE Supplier and confirmation thereof will be supplied to the Seller in writing;

 

   

to attend the Source Inspection (“ SI ”) that takes place at the BFE Supplier’s premises prior to shipping, for each shipset of all Major BFE. Should the Buyer not attend such SI, the Buyer will delegate the SI to the BFE Supplier and confirmation thereof will be brought to the Seller in writing. Should the Buyer not attend the SI, the Buyer will be deemed to have accepted the conclusions of the BFE Supplier with respect to such SI.

 

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The Seller will be entitled to attend the PDR, the CDR and the FAI. In doing so, the Seller’s employees will be acting in an advisory capacity only and at no time will they be deemed to be acting as Buyer’s employees or agents, either directly or indirectly.

 

18.1.4 The BFE will be imported into FRANCE or into GERMANY by the Buyer under a suspensive customs system (“Régime de l’entrepôt douanier ou régime de perfectionnement actif “ or “Zollverschluss”) without application of any French or German tax or customs duty, and will be Delivered Duty Unpaid (DDU) according to the Incoterms, to the following shipping addresses:

AIRBUS OPERATIONS S.A.S.

316 Route de Bayonne

31300 TOULOUSE

FRANCE

or

AIRBUS OPERATIONS GmbH

Kreetslag 10

21129HAMBURG

GERMANY

Or such other location as may be specified by the Seller.

 

18.2 Applicable Requirements

The Buyer is responsible for ensuring, [***], and warrants that the BFE will:

 

   

be manufactured by a BFE Supplier, and

 

   

meet the requirements of the applicable Specification of the Aircraft, and

 

   

be delivered with the relevant certification documentation, including but not limited to the DDP, and

 

   

comply with the BFE Engineering Definition, and

 

   

comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, and

 

   

be approved by the Aviation Authority issuing the Export Airworthiness Certificate and by the Buyer’s Aviation Authority for installation and use on the Aircraft at the time of Delivery of the Aircraft, and

 

   

not infringe any patent, copyright or other intellectual property right of the Seller any third party, and

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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not be subject to any legal obligation or other encumbrance that may prevent, hinder or delay the installation of the BFE in the Aircraft and/or the Delivery of the Aircraft.

The Seller will be entitled to refuse any item of BFE that that is incompatible with the Specification, the BFE Engineering Definition or the certification requirements.

 

18.3 Buyer’s Obligation and Seller’s Remedies

 

18.3.1 Any delay or failure by the Buyer or the BFE Suppliers in:

[***].

 

18.3.2 In addition, in the event of any delay or failure mentioned in 18.3.1 above, the Seller may:

[***].

 

18.4 Title and Risk of Loss

Title to and risk of loss of any BFE will at all times remain with the Buyer except that risk of loss (limited to cost of replacement of said BFE) will be with the Seller for as long as such BFE is under the care, custody and control of the Seller.

 

18.5 Disposition of BFE Following Termination

 

18.5.1 If a termination of this Agreement pursuant to the provisions of Clause 20 occurs with respect to an Aircraft in which all or any part of the BFE has been installed prior to the date of such termination, the Seller will be entitled, but not required, to remove all items of BFE that can be removed without damage to the Aircraft and to undertake commercially reasonable efforts to facilitate the sale of such items of BFE to other customers, retaining and applying the proceeds of such sales to reduce the Seller’s damages resulting from the termination.

 

18.5.2 The Buyer will cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 and will be responsible for all costs incurred by the Seller in removing and facilitating the sale of such BFE. The Buyer will reimburse the Seller for all such costs within five (5) Business Days of receiving documentation of such costs from the Seller.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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18.5.3 The Seller will notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Seller’s request, the Buyer will undertake to remove such items from the Seller’ facility within thirty (30) days of the date of such notice. The Buyer will have no claim against the Seller for damage, loss or destruction of any item of BFE removed from the Aircraft and not removed from Seller’s facility within such period.

 

18.5.4 The Buyer will have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being removed from the Aircraft, provided that the Seller will use reasonable care in such removal.

 

18.5.5 The Buyer will grant the Seller title to any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable.

 

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19 - INDEMNITIES AND INSURANCE

The Seller and the Buyer will each be liable for Losses (as defined below) arising from the acts or omissions of their respective directors, officers, agents or employees occurring during or incidental to such party’s exercise of its rights and performance of its obligations under this Agreement, except as provided in Clauses 19.1 and 19.2.

 

19.1 Seller’s Indemnities

The Seller will, except in the case of gross negligence or willful misconduct of the Buyer, its directors, officers, agents and/or employees, be solely liable for and will indemnify and hold the Buyer, its Affiliates and each of their respective directors, officers, agents, employees and insurers harmless against all losses, liabilities, claims, damages, costs and expenses, including court costs and reasonable attorneys’ fees (“ Losses ”), arising from:

 

  (a) claims for injuries to, or death of, the Seller’s directors, officers, agents or employees, or loss of, or damage to, property of the Seller or its employees when such Losses occur during or are incidental to either party’s exercise of any right or performance of any obligation under this Agreement, and

 

  (b) claims for injuries to, or death of, third parties, or loss of, or damage to, property of third parties, occurring during or incidental to the Technical Acceptance Flights.

 

19.2 Buyer’s Indemnities

The Buyer will, except in the case of gross negligence or willful misconduct of the Seller, its directors, officers, agents and/or employees, be solely liable for and will indemnify and hold the Seller, its Affiliates, its subcontractors, and each of their respective directors, officers, agents, employees and insurers, harmless against all Losses arising from:

 

  (a) claims for injuries to, or death of, the Buyer’s directors, officers, agents or employees, or loss of, or damage to, property of the Buyer or its employees, when such Losses occur during or are incidental to either party’s exercise of any right or performance of any obligation under this Agreement, and

 

  (b) claims for injuries to, or death of, third parties, or loss of, or damage to, property of third parties, occurring during or incidental to (i) the provision of Seller Representatives services under Clause 15 including services performed on board the aircraft or (ii) the provision of Aircraft Training Services to the Buyer.

 

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19.3 Notice and Defense of Claims

If any claim is made or suit is brought against a party or entity entitled to indemnification under this Clause 19 (the “ Indemnitee ”) for damages for which liability has been assumed by the other party under this Clause 19 (the “ Indemnitor ”), the Indemnitee will promptly give notice to the Indemnitor and the Indemnitor (unless otherwise requested by the Indemnitee) will assume and conduct the defense, or settlement, of such claim or suit, as the Indemnitor will deem prudent. Notice of the claim or suit will be accompanied by all information pertinent to the matter as is reasonably available to the Indemnitee and will be followed by such cooperation by the Indemnitee as the Indemnitor or its counsel may reasonably request, at the expense of the Indemnitor.

 

19.4 Insurance

For all Aircraft Training Services, to the extent of the Buyer’s undertaking set forth in Clause 19.2, the Buyer will:

 

  (a) cause the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents and employees to be named as additional insured under the Buyer’s Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils (such insurance to include the AVN 52E Extended Coverage Endorsement Aviation Liabilities or any further Endorsement replacing AVN 52E as may be available as well as any excess coverage in respect of War and Allied Perils Third Parties Legal Liabilities Insurance), and

 

  (b) with respect to the Buyer’s Hull All Risks and Hull War Risks insurances and Allied Perils, cause the insurers of the Buyer’s hull insurance policies to waive all rights of subrogation against the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents, employees and insurers.

Any applicable deductible will be borne by the Buyer. The Buyer will furnish to the Seller, not less than seven (7) working days prior to the start of any Aircraft Training Services, certificates of insurance, in English, evidencing the limits of liability cover and period of insurance coverage in a form acceptable to the Seller from the Buyer’s insurance broker(s), certifying that such policies have been endorsed as follows:

 

  (i) under the Comprehensive Aviation Legal Liability Insurances, the Buyer’s policies are primary and non-contributory to any insurance maintained by the Seller,

 

  (ii) such insurance can only be cancelled or materially altered by the giving of not less than thirty (30) days (but seven (7) days or such lesser period as may be customarily available in respect of War Risks and Allied Perils) prior written notice thereof to the Seller, and

 

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  (iii) under any such cover, all rights of subrogation against the Seller, its Affiliates, its subcontractors and each of their respective directors, officers, agents, employees and insurers have been waived.

 

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20 - TERMINATION

 

20.1 Termination Events

Each of the following will constitute a “ Termination Event

 

  (1) The Buyer or any of its Affiliates commences in any jurisdiction any case, proceeding or other action with respect to the Buyer or any of its Affiliates or their properties relating to bankruptcy, insolvency, reorganization, winding-up, liquidation, dissolution or other relief from, or with respect to, or readjustment of, its debts or obligations.

 

  (2) An action is commenced in any jurisdiction seeking the appointment of a receiver, trustee, custodian or other similar official for the Buyer or any of its respective Affiliates or for all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days, or the Buyer or any of its Affiliates makes a general assignment for the benefit of its creditors.

 

  (3) An action is commenced in any jurisdiction against the Buyer or any of its respective Affiliates seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days.

 

  (4) The Buyer or any of its Affiliates becomes the object, in any jurisdiction, of a case, proceeding or action similar or analogous to any of the events mentioned in Clause 20.1(1), (2) or (3).

 

  (5) The Buyer or any of its Affiliates is generally not able, or is expected to be unable to, or will admit in writing its inability to, pay its debts as they become due.

 

  (6) The Buyer or any of its Affiliates commences negotiations with significant creditors, existing or potential, either with the intention of restructuring all or a substantial part of all of its outstanding obligations or in preparation for a bankruptcy filing under the U.S. Bankruptcy Code.

 

  (7) The Buyer or any of its Affiliates fails to make payment of (i) any payment required to be made under this Agreement or any other material agreement between the Buyer or any of its Affiliates and the Seller or any of its Affiliates when such payment is due, (ii) any Predelivery Payment required to be made under this Agreement when such payment is due, or (iii) payment of all or part of the Final Price of any Aircraft required to be made under this Agreement.

 

  (8) The Buyer repudiates, cancels or terminates this Agreement in whole or in part.

 

  (9) The Buyer defaults in its obligation to take delivery of an Aircraft as provided in Clause 9.2.

 

  (10) The Buyer or any of its Affiliates defaults in the observance or performance of any other covenant, undertaking or obligation contained in this Agreement or any other material agreement between the Buyer or its Affiliates, on the one hand, and the Seller or its Affiliates on the other hand, provided that, if such breach or default is capable of being cured and such breach or default is not cured within any specified cure period.

 

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  (11) Any other event that the parties agree in writing constitutes a Termination Event.

 

20.2 Remedies in Event of Termination

 

20.2.1 If a Termination Event occurs, the Buyer will be in material breach of this Agreement, and the Seller can elect any of the following remedies under the applicable law:

 

  A. suspend its performance under this Agreement with respect to any or all Aircraft;

 

  B. reschedule the Scheduled Delivery Month of any or all Aircraft remaining to be delivered under this Agreement without prejudice to Seller’s rights under Clause 5.8.2;

 

  C. suspend or reschedule the date for performance under this Agreement with respect to any or all equipment, services, data and other items; and/or

 

  D. cancel or terminate this Agreement (a “ Termination ”) with respect to any or all Aircraft, and/or equipment, services, data and/or other items related thereto.

 

20.2.2 In the event Seller elects a remedy under any of Clauses 20.2.1(A)(B) or (C), above:

 

  A. Seller shall be entitled to any incidental damages incurred as a result of electing such remedy, including without limitation any commercially reasonable charges, expenses, commissions or costs of care or custody incurred in suspending or rescheduling performance after the Buyer’s breach or any costs identified in Clause 9.2.3;

 

  B. Buyer shall compensate Seller for such incidental damages within ten (10) calendar days of Seller issuing an invoice for such damages to Buyer; and

 

  C. for the avoidance of doubt, (i) nothing herein shall preclude Seller from subsequently electing a Termination under 20.2.1 D, above [***].

 

20.2.3 If the Seller elects a Termination under Clause 20.2.1(D) above:

 

  A. Seller may claim and receive payment from the Buyer, as liquidated damages and not as a penalty, an amount equal to, for each Affected Aircraft (as defined below), the amount set forth as follows [***]:

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

 

 

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  B. Liquidated damages will be payable by the Buyer promptly, and in any event within [***] of the date of written notice and demand therefor from the Seller that the Buyer is in breach. The parties agree that the remedy of liquidated damages is not to be denied to the Seller due to the inability of the Seller to deliver a notice and demand for payment thereof due to the operation of law following a bankruptcy or other Termination Event under Clause 20.1(1) – (4).

 

20.2.4. The parties to this Agreement are commercially sophisticated parties acting within the same industry, and represented by competent counsel and the parties expressly agree and declare as follows:

 

  A. damages for material breach of this Agreement by the Buyer resulting in a Termination of this Agreement as to any or all Aircraft have been liquidated at amounts that are reasonable in light of the anticipated or actual harm caused by the Buyer’s breach, the difficulties of proof of loss and the nonfeasibility of otherwise obtaining an adequate remedy;

 

  B. it is understood and agreed by the parties that the amount of liquidated damages set forth herein is the total amount of monetary damages, no more and no less, to which the Seller will be entitled for and with respect to any Aircraft as recovery for material breach of this Agreement by Buyer resulting in a Termination by the Seller of this Agreement as to such Aircraft; provided, however, that for the avoidance of doubt the foregoing shall not be deemed to preclude Seller’s entitlement to (i) incidental damages where it is electing remedies under Clause 20.2.1(A),(B) or (C), (ii) exercise any set-off or similar rights under Clauses 5.6 and 5.12 with respect to payments due under this Clause 20 or (iii) interest specified in Clause 5.8.1 with respect to any payments overdue under this Clause 20; and

 

  C. the liquidated damages provision of this Clause 20 has been fully negotiated by sophisticated parties represented by counsel, is a material component of the consideration granted and, in the absence of such liquidated damages provision, the consideration would have been materially different.

 

20.3 Definitions

For purposes of this Clause 20, the terms “Affected Aircraft”, “Applicable Date” and “Escalated Price” are defined as follows:

 

  i. Affected Aircraft ” – any or all Aircraft with respect to which the Seller has cancelled or terminated this Agreement pursuant to Clause 20.2.1 D,

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

 

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  ii. Applicable Date ” – for any Affected Aircraft, the date the Seller issues the notice and demand for payment of liquidated damages pursuant to Clause 20.2.3 B.

 

  iii. Escalated Price ” – shall have the same meaning as the “Final Price” of the Aircraft as that term is defined in Clause 3.2, except that the meaning of “Delivery Date” shall have the same meaning as Applicable Date plus ten (10) calendar days, provided however that escalation in accordance with Clause 4 will continue to accrue until the date that payment of all liquidated damages is finally made in full by the Buyer to the Seller.

 

20.4 Notice of Termination Event

Within ten (10) days of becoming aware of the occurrence of a Termination Event by the Buyer, the Buyer will notify the Seller of such occurrence in writing, provided, that any failure by the Buyer to notify the Seller will not prejudice the Seller’s rights or remedies hereunder.

 

20.5 Information Covenants

The Buyer hereby covenants and agrees that, from the date of this Agreement until no further Aircraft are to be delivered hereunder, the Buyer will furnish or cause to be furnished to the Seller the following, it being understood that this covenant with respect to Clauses 20.5 (a), (b) and (e) will be deemed satisfied if the information requested in those clauses is filed, with un-redacted financial statements, with the U.S. Securities and Exchange Commission and is publicly available on EDGAR (or any successor online resource):

 

  a. Annual Financial Statements. As soon as available and in any event no later than the date that the Buyer furnishes such annual statements to the Securities and Exchange Commission or successor thereto (the “ SEC ”) (i) a copy of the SEC Form 10-K filed by the Buyer with the SEC for such fiscal year, or, if no such Form 10-K was filed by the Buyer for such a fiscal year, the consolidated balance sheet of the Buyer and its Subsidiaries, as at the end of such fiscal year and the related consolidated statements of operations, of common stockholders’ equity (deficit) (in the case of the Buyer and its Subsidiaries) and of cash flows for such fiscal year, setting forth comparative consolidated figures as of the end of and for the preceding fiscal year, and examined by any firm of independent public accountants of recognized standing selected by the Buyer and reasonably acceptable to the Seller, whose opinion will not be qualified as to the scope of audit or as to the status of the Buyer as a going concern, and (ii) a certificate of such accounting firm stating that its audit of the business of the Buyer was conducted in accordance with generally accepted auditing standards.

 

  b.

Quarterly Financial Statements . As soon as available and in any event no later than the date that the Buyer furnishes such quarterly statements to the Securities and Exchange Commission or successor thereto, a copy of the SEC Form 10-Q filed by the Buyer with the SEC for such quarterly period, or, if

 

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  no such Form 10-Q was filed by the Buyer with respect to any such quarterly period, the consolidated balance sheet of the Buyer and its Subsidiaries, as at the end of such quarterly period and the related consolidated statements of operations for such quarterly period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period and in each case setting forth comparative consolidated figures as of the end of and for the related periods in the prior fiscal year, all of which will be certified by an Authorized Officer of the Buyer, subject to changes resulting from audit and normal year-end audit adjustments.

 

  c. Debt Rescheduling . (i) Promptly upon the Buyer commencing negotiations with one or more of its significant creditors with a view to general readjustment or rescheduling of all or any material part of its indebtedness under circumstances in which a reasonable business person, in the exercise of prudent business judgment, would conclude that the Buyer would otherwise not be able to pay such indebtedness as it falls due, notice of commencement of such negotiations, and (ii) thereafter timely advice of the progress of such negotiations until such negotiations are terminated or completed.

 

  d. Acceleration of other indebtedness . Immediately upon knowledge by the Buyer that the holder of any bond, debenture, promissory note or any similar evidence of indebtedness of the Buyer or Affiliate thereof (“ Other Indebtedness ”) has demanded payment, given notice or exercised its right to a remedy having the effect of acceleration with respect to a claimed event of default under any Other Indebtedness, where the impact of the acceleration is likely to have a material adverse effect on the Buyer’s ability to perform its obligations under or in connection with the transactions contemplated by this Agreement, notice of the demand made, notice given or action taken by such holder and the nature and status of the claimed event of default and what the action the Buyer is taking with respect thereto.

 

  e. Other Information . Promptly upon transmission thereof, copies of any filings and registrations with, and reports to, the SEC by the Buyer or any of its Subsidiaries, and, with reasonable promptness, such other information or documents (financial or otherwise) as the Seller may reasonably request from time to time.

For the purposes of this Clause 20, (x) an “ Authorized Officer ” of the Buyer will mean the Chief Executive Officer, the Chief Financial Officer or any Vice President and above who reports directly or indirectly to the Chief Financial Officer and (y) “ Subsidiaries ” will mean, as of any date of determination, those companies owned by the Buyer whose financial results the Buyer is required to include in its statements of consolidated operations and consolidated balance sheets.

 

20.6 Nothing contained in this Clause 20 will be deemed to waive or limit the Seller’s rights or ability to request adequate assurance under Article 2, Section 609 of the Uniform Commercial Code (the “UCC”). It is further understood that any commitment of the Seller or the Propulsion Systems manufacturer to provide financing to the Buyer shall not constitute adequate assurance under Article 2, Section 609 of the UCC.

 

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21 - ASSIGNMENTS AND TRANSFERS

 

21.1 Assignments

Except as hereinafter provided, neither party may sell, assign, novate or transfer its rights or obligations under this Agreement to any person without the prior written consent of the other, except that the Seller may sell, assign, novate or transfer its rights or obligations under this Agreement to any Affiliate without the Buyer’s consent.

 

21.2 Assignments on Sale, Merger or Consolidation

The Buyer will be entitled to assign its rights under this Agreement at any time due to a merger, consolidation or a sale of all or substantially all of its assets, provided the Buyer first obtains the written consent of the Seller. The Buyer will, as promptly as reasonably practicable, provide the Seller with prior notice if the Buyer wishes the Seller to provide such consent. The Seller will provide its consent if

 

  (i) the surviving or acquiring entity is organized and existing under the laws of the United States;

 

  (ii) the surviving or acquiring entity has executed an assumption agreement, in form and substance reasonably acceptable to the Seller, agreeing to assume all of the Buyer’s obligations under this Agreement;

 

  (iii) at the time, and immediately following the consummation, of the merger, consolidation or sale, no event of default exists or will have occurred and be continuing;

 

  (iv) there exists with respect to the surviving or acquiring entity no basis for a Termination Event;

 

  (v) the surviving or acquiring entity is an airline holding an operating certificate issued by the FAA at the time, and immediately following the consummation, of such sale, merger or consolidation; and

 

  (vi) following the sale, merger or consolidation, the surviving entity is in a financial condition at least equal to that of the Buyer at time of execution of the Agreement.

 

21.3 Designations by Seller

The Seller may at any time by notice to the Buyer designate facilities or personnel of the Seller or any other Affiliate of the Seller at which or by whom the services to be performed under this Agreement will be performed. Notwithstanding such designation, the Seller will remain ultimately responsible for fulfillment of all obligations undertaken by the Seller in this Agreement.

 

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21.4 Transfer of Rights and Obligations upon Reorganization

In the event that the Seller is subject to a corporate restructuring having as its object the transfer of, or succession by operation of law in, all or a substantial part of its assets and liabilities, rights and obligations, including those existing under this Agreement, to a person (the “ Successor ”) that is an Affiliate of the Seller at the time of that restructuring, for the purpose of the Successor carrying on the business carried on by the Seller at the time of the restructuring, such restructuring will be completed without consent of the Buyer following notification by the Seller to the Buyer in writing. The Buyer recognizes that succession of the Successor to the Agreement by operation of law that is valid under the law pursuant to which that succession occurs will be binding upon the Buyer.

 

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22 - MISCELLANEOUS PROVISIONS

 

22.1 Data Retrieval

On the Seller’s reasonable request, the Buyer will provide the Seller with all the necessary data, as customarily compiled by the Buyer and pertaining to the operation of the Aircraft, to assist the Seller in making an efficient and coordinated survey of all reliability, maintenance, operational and cost data with a view to monitoring the efficient and cost effective operations of the Airbus fleet worldwide

 

22.2 Notices

All notices and requests required or authorized hereunder will be given in writing either by personal delivery to a authorized officer of the party to whom the same is given or by commercial courier, certified air mail (return receipt requested) or facsimile at the addresses and numbers set forth below. The date on which any such notice or request is so personally delivered, or if such notice or request is given by commercial courier, certified air mail or facsimile, the date on which sent, will be deemed to be the effective date of such notice or request.

The Seller will be addressed at:

Airbus S.A.S.

Attention: Senior Vice President Contracts

1, Rond Point Maurice Bellonte

31707 Blagnac Cedex,

France

The Buyer will be addressed at:

JetBlue Airways Corporation

Attention: Executive Vice President and General Counsel

118-29 Queens Boulevard

Forest Hills, New York 11375

United States of America

From time to time, the party receiving the notice or request may designate another address or another person.

 

22.3 Waiver

The failure of either party to enforce at any time any of the provisions of this Agreement, to exercise any right herein provided or to require at any time performance by the other party of any of the provisions hereof will in no way be construed to be a present or future waiver of such provisions nor in any way to affect the validity of this Agreement or any part hereof or the right of the other party thereafter to enforce each and every such provision. The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

 

Page 94 of 104


22.4 International Supply Contract

The Buyer and the Seller recognize that this Agreement is an international supply contract which has been the subject of discussion and negotiation, that all its terms and conditions are fully understood by the parties, and that the Specification and price of the Aircraft and the other mutual agreements of the parties set forth herein were arrived at in consideration of, inter alia, all provisions hereof specifically including all waivers, releases and remunerations by the Buyer set out herein.

 

22.5 Certain Representations of the Parties

 

22.5.1 Buyer’s Representations

The Buyer represents and warrants to the Seller:

 

  (i) the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement;

 

  (ii) neither the execution and delivery by the Buyer of this Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound;

 

  (iii) this Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms.

 

22.5.2 Seller’s Representations

The Seller represents and warrants to the Buyer:

 

  (i) the Seller is organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the Agreement;

 

  (ii) neither the execution and delivery by the Seller of this Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the obligations thereunder, constitutes a breach of any agreement to which the Seller is a party or by which its assets are bound;

 

  (iii) this Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.

 

Page 95 of 104


22.6 Interpretation and Law

THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Each of the Seller and the Buyer (i) hereby irrevocably submits itself to the nonexclusive jurisdiction of the courts of the state of New York, New York County, of the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or parties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, to the extent permitted by applicable law, any defense based on sovereign or other immunity or that the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the transactions contemplated hereby may not be enforced in or by these courts.

THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.

 

22.6.1 The Buyer for itself and its successors and assigns hereby designates and appoints the Secretary of the Buyer duly elected from time to time as its legal agent and attorney-in-fact upon whom all processes against the Buyer in any suit, action or proceeding in respect of any matter as to which it has submitted to jurisdiction under Clause 22.6 may be served with the same effect as if the Buyer were a corporation organized under the laws of the State of New York and had lawfully been served with such process in such state, it being understood that such designation and appointments will become effective without further action on the part of its Secretary.

 

22.6.2 The assumption in Clause 22.6.1 made for the purpose of effecting the service of process will not affect any assertion of diversity by either party hereto initiating a proceeding in the New York Federal Courts or seeking transfer to the New York Federal Courts on the basis of diversity.

 

22.6.3

Service of process in any suit, action or proceeding in respect of any matter as to which the Seller or the Buyer has submitted to jurisdiction under Clause 22.6 may be made on the Seller by delivery of the same personally or by dispatching the same via Federal Express, UPS, or similar international air courier service prepaid to, CT Corporation, New York City offices as agent for the Seller, it being agreed that service upon CT Corporation will constitute valid service upon the Seller or by any other method authorized by the laws of the State of New York, and (ii) may be made on the Buyer by delivery of the same personally or by dispatching the same by Federal Express, UPS, or similar international air

 

Page 96 of 104


  courier service prepaid, return receipt requested to: CT Corporation, 111 Hudson St., New York, NY (or such other office in the City of New York as such agent then occupies), as agent for the Buyer, it being agreed that service upon CT Corporation will constitute valid service upon the Buyer or by any other method authorized by the laws of the State of New York; provided in each case that failure to deliver or mail such copy will not affect the validity or effectiveness of the service of process.

 

22.6.4 Headings

All headings in this Agreement are for convenience of reference only and do not constitute a part of this Agreement.

 

22.7 Waiver of Jury Trial

EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM OR CROSS-CLAIM THEREIN.

 

22.8 Waiver of Consequential Damages

Except, as set forth in Clause 20.2.2, in no circumstances shall either party claim or receive incidental or consequential damages under this Agreement.

 

22.9 No Representations Outside of this Agreement

The parties declare that, prior to the execution of this Agreement, they, with the advice of their respective counsel, apprised themselves of sufficient relevant data in order that they might intelligently exercise their own judgments in deciding whether to execute this Agreement and in deciding on the contents of this Agreement. Each party further declares that its decision to execute this Agreement is not predicated on or influenced by any declarations or representations by any other person, party, or any predecessors in interest, successors, assigns, officers, directors, employees, agents or attorneys of any said person or party, except as set forth in this Agreement. This Agreement resulted from negotiation involving counsel for all of the parties hereto and no term herein will be construed or interpreted against any party under the contra proferentum or any related doctrine.

 

22.10 Confidentiality

Subject to any legal or governmental requirements of disclosure, the parties (which for this purpose will include their employees, and legal counsel) will maintain the terms and conditions of this Agreement and any reports or other data furnished hereunder strictly confidential, including but not limited to, the Aircraft pricing (the “ Confidential Information ”). Without limiting the generality of the foregoing, the Buyer will use its best efforts to limit the disclosure of the contents of this Agreement to the extent legally permissible in (i) any filing required to be made by the Buyer with any governmental agency and will make such applications as will be necessary to implement the foregoing, and (ii) any press

 

Page 97 of 104


release concerning the whole or any part of the contents and/or subject matter hereof or of any future addendum hereto. With respect to any public disclosure or filing, the Buyer agrees to submit to the Seller a copy of the proposed document to be filed or disclosed and will give the Seller a reasonable period of time in which to review said document. The Buyer and the Seller will consult with each other prior to the making of any public disclosure or filing, permitted hereunder, of this Agreement or the terms and conditions thereof.

The provisions of this Clause 22.10 will survive any termination of this Agreement.

 

22.11 Severability

If any provision of this Agreement should for any reason be held ineffective, the remainder of this Agreement will remain in full force and effect. To the extent permitted by applicable law, each party hereto hereby waives any provision of law that renders any provision of this Agreement prohibited or unenforceable in any respect.

 

22.12 Scope of Agreement and Original Agreement

 

22.12.1 This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written, including but not limited to the terms and conditions of the Original Agreement, with respect thereto. This Agreement will not be amended or modified except by an instrument in writing of even date herewith or subsequent hereto executed by both parties or by their fully authorized representatives.

 

22.12.2 The terms and conditions of the Original Agreement will apply to all Aircraft delivered under such Original Agreement prior to the date of this Agreement.

 

22.13 Inconsistencies

In the event of any inconsistency between the terms of this Agreement and the terms contained in either (i) the Specification, or (ii) any other Exhibit, in each such case the terms of this Agreement will prevail over the terms of the Specification or any other Exhibit. For the purpose of this Clause 22.13, the term Agreement will not include the Specification or any other Exhibit hereto.

 

22.14 Language

All correspondence, documents and any other written matters in connection with this Agreement will be in English.

 

22.15 Counterparts

This Agreement has been executed in two (2) original copies.

Notwithstanding the foregoing, this Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered will be an original, but all such counterparts will together constitute but one and the same instrument.

 

Page 98 of 104


IN WITNESS WHEREOF, this Agreement was entered into as of the day and year first above written.

 

AIRBUS, S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

Page 99 of 104


SCHEDULE 1

DELIVERY SCHEDULE

 

   

CACiD

No.

 

Aircraft

Rank No.

 

Type

 

Scheduled

Delivery

Month/Quarter

 

Scheduled

Delivery Year

1   159 908   122  

Group 1 A320

Aircraft

  [***]   2011
2   159 942   123  

Group 1 A320

Aircraft

  [***]   2012
3   159 943   124  

Group 1 A320

Aircraft

  [***]   2012
4   159 950   125  

Group 1 A320

Aircraft

  [***]   2012
5   159 951   126  

Group 1 A320

Aircraft

  [***]   2012
6   159 923   127  

Group 1 A320

Aircraft

  [***]   2012
7   159 924   128  

Group 1 A320

Aircraft

  [***]   2012
8   159 925   129  

Group 1 A320

Aircraft

  [***]   2012
9   159 939   130  

A320 Backlog

Aircraft

  [***]   2013
10   159 960   131  

A320 Backlog

Aircraft

  [***]   2013
11   159 961   132  

A320 Backlog

Aircraft

  [***]   2013
12   159 962   133  

A321 Backlog

Aircraft

  [***]   2013
13   159 963   134  

A321 Backlog

Aircraft

  [***]   2013
14   159 964   135  

A321 Backlog

Aircraft

  [***]   2013
15   159 965   136  

A321 Backlog

Aircraft

  [***]   2013
16   159 916   137  

A321 Backlog

Aircraft

  Year   2014
17   159 940   138  

A321 Backlog

Aircraft

  Year   2014
18   159 941   139  

A321 Backlog

Aircraft

  Year   2014
19   1598 944   140  

A321 Backlog

Aircraft

  Year   2014
20   159 945   141  

A321 Backlog

Aircraft

  Year   2014
21   159 946   142  

A321 Backlog

Aircraft

  Year   2014

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

Page 100 of 104


22   159 947   143  

A321 Backlog

Aircraft

  Year   2014
23   159 948   144  

A321 Backlog

Aircraft

  Year   2014
24   159 949   145  

A321 Backlog

Aircraft

  Year   2014
25   159 956   146  

A321 Backlog

Aircraft

  Year   2015
26   159 957   147  

A321 Backlog

Aircraft

  Year   2015
27   159 958   148  

A321 Backlog

Aircraft

  Year   2015
28   159 959   149  

A321 Backlog

Aircraft

  Year   2015
29   159 929   150  

A321 Backlog

Aircraft

  Year   2015
30   159 930   151  

A321 Backlog

Aircraft

  Year   2015
31   159 931   152  

A321 Backlog

Aircraft

  Year   2015
32   159 932   153  

A321 Backlog

Aircraft

  Year   2015
33   159 933   154  

A321 Backlog

Aircraft

  Year   2015
34   159 920   155  

A321 Backlog

Aircraft

  Year   2015
35   159 911   156  

A321 Backlog

Aircraft

  Year   2016
36   159 912   157  

A321 Backlog

Aircraft

  Year   2016
37   159 917   158  

A321 Backlog

Aircraft

  Year   2016
38   159 918   159  

A321 Backlog

Aircraft

  Year   2016
39   159 926   160  

A321 Backlog

Aircraft

  Year   2016
40   159 927   161  

A321 Backlog

Aircraft

  Year   2016
41   159 928   162  

A321 Backlog

Aircraft

  Year   2016
42   159 952   163  

A320 Backlog

Aircraft

  Year   2016
43   159 953   164  

A320 Backlog

Aircraft

  Year   2016

 

Page 101 of 104


44   159 934   165  

A320 Backlog

Aircraft

  Year   2016
45   159 922   166  

A320 Backlog

Aircraft

  Year   2017
46   159 954   167  

A320 Backlog

Aircraft

  Year   2017
47   159 955   168  

A320 Backlog

Aircraft

  Year   2017
48   159 921   169  

A320 Backlog

Aircraft

  Year   2017
49   104 440   170  

A320 Backlog

Aircraft

  Year   2017
50   104 442   171  

A320 Backlog

Aircraft

  Year   2017
51   159 909   172  

A320 Backlog

Aircraft

  Year   2017
52   159 910   173  

A320 Backlog

Aircraft

  Year   2017
53     174  

A320 NEO

Aircraft

  Year   2018
54     175  

A320 NEO

Aircraft

  Year   2018
55     176  

A320 NEO

Aircraft

  Year   2018
56     177  

A320 NEO

Aircraft

  Year   2018
57     178  

A320 NEO

Aircraft

  Year   2018
58     179  

A320 NEO

Aircraft

  Year   2018
59     180  

A320 NEO

Aircraft

  Year   2018
60     181  

A320 NEO

Aircraft

  Year   2018
61     182  

A320 NEO

Aircraft

  Year   2018
62     183  

A320 NEO

Aircraft

  Year   2018
63     184  

A320 NEO

Aircraft

  Year   2019
64     185  

A320 NEO

Aircraft

  Year   2019
65     186  

A320 NEO

Aircraft

  Year   2019

 

Page 102 of 104


66     187  

A320 NEO

Aircraft

  Year   2019
67     188  

A320 NEO

Aircraft

  Year   2019
68     189  

A320 NEO

Aircraft

  Year   2019
69     190  

A320 NEO

Aircraft

  Year   2019
70     191  

A320 NEO

Aircraft

  Year   2019
71     192  

A320 NEO

Aircraft

  Year   2019
72     193  

A320 NEO

Aircraft

  Year   2019
73     194  

A320 NEO

Aircraft

  Year   2020
74     195  

A320 NEO

Aircraft

  Year   2020
75     196  

A320 NEO

Aircraft

  Year   2020
76     197  

A320 NEO

Aircraft

  Year   2020
77     198  

A320 NEO

Aircraft

  Year   2020
78     199  

A320 NEO

Aircraft

  Year   2020
79     200  

A320 NEO

Aircraft

  Year   2020
80     201  

A320 NEO

Aircraft

  Year   2020
81     202  

A320 NEO

Aircraft

  Year   2020
82     203  

A320 NEO

Aircraft

  Year   2020
83     204  

A320 NEO

Aircraft

  Year   2021
84     205  

A320 NEO

Aircraft

  Year   2021
85     206  

A320 NEO

Aircraft

  Year   2021
86     207  

A320 NEO

Aircraft

  Year   2021
87     208  

A320 NEO

Aircraft

  Year   2021

 

Page 103 of 104


88     209  

A320 NEO

Aircraft

  Year   2021
89     210  

A320 NEO

Aircraft

  Year   2021
90     211  

A320 NEO

Aircraft

  Year   2021
91     212  

A320 NEO

Aircraft

  Year   2021
92     213  

A320 NEO

Aircraft

  Year   2021

 

Page 104 of 104


EXHIBIT A

E X H I B I T  A

 

Exhibit A1 :   A320 Standard Specification document number D.000.02000 Issue 8 dated June 20, 2011
Exhibit A2:   A321 Standard Specification document number E.000.02000 Issue 5 dated June 20, 2011
Exhibit A3 :   A320 Standard Specification document number D.000.02000 Issue 6 dated January 31, 2005


EXHIBIT A1

A320 STANDARD SPECIFICATION

Document Number D.000.02000 Issue 8 dated June 20, 2011

The A320 Standard Specification document number D.000.02000 Issue 8 dated June 20, 2011 is contained in a separate folder.


EXHIBIT A2

A321 STANDARD SPECIFICATION

Document Number E.000.02000 Issue 5 dated June 20, 2011

The A321 Standard Specification document number E.000.02000 Issue 5 dated June 20, 2011 is contained in a separate folder.


EXHIBIT A3

A320 STANDARD SPECIFICATION

Document Number D.000.02000 Issue 6 dated January 31, 2005

The A320 Standard Specification document number D.000.02000 Issue 6 dated January 31, 2005 is contained in a separate folder.


E X H I B I T  B

 

Exhibit B1:   Form of a Specification Change Notice
Exhibit B2:   Form of a Manufacturer’s Specification Change Notice
Exhibit B3:   SCN List A320 Backlog Aircraft (excluding Group 1 A320 Aircraft)
Exhibit B4:   SCN List A320 NEO Aircraft
Exhibit B5:   SCN List A321 Backlog Aircraft
Exhibit B6:   SCN List Group 1 A320 Aircraft


 

   Exhibit B1
LOGO    For
SPECIFICATION CHANGE NOTICE    SCN Number
   Issue
(SCN)    Dated
   Page

Title :

Description :

Remarks / References

Specification changed by this SCN

This SCN requires prior or concurrent acceptance of the following SCN (s):

Price per aircraft

US DOLLARS:

AT DELIVERY CONDITIONS:

This change will be effective on                      AIRCRAFT N°          and subsequent.

Provided approval is received by

 

Buyer approval    Seller approval   
By:   

By:

  
Date:   

Date:

  


 

   Exhibit B1
LOGO    For
SPECIFICATION CHANGE NOTICE    SCN Number
   Issue
(SCN)    Dated
   Page

Specification repercussion:

After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:


 

   Exhibit B1
LOGO    For
SPECIFICATION CHANGE NOTICE    SCN Number
   Issue
(SCN)    Dated
   Page

Scope of change (FOR INFORMATION ONLY)


 

   Exhibit B2
LOGO    For
MANUFACTURER’S SPECIFICATION CHANGE NOTICE    MSCN Number
   Issue
(MSCN)    Dated
   Page

Title :

Description :

Effect on weight :

 

   

Manufacturer’s Weight Empty change :

 

   

Operational Weight Empty change :

 

   

Allowable Payload change :

Remarks / References

Specification changed by this MSCN

Price per aircraft

US DOLLARS:

AT DELIVERY CONDITIONS:

This change will be effective on                      AIRCRAFT N°          and subsequent.

Provided MSCN is not rejected by

 

Buyer approval    Seller approval   
By:   

By:

  
Date:   

Date:

  


 

   Exhibit B2
LOGO    For
MANUFACTURER’S SPECIFICATION CHANGE NOTICE    MSCN Number
   Issue
(MSCN)    Dated
   Page

Specification repercussion:

After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:


 

   Exhibit B2
LOGO    For
MANUFACTURER’S SPECIFICATION CHANGE NOTICE    MSCN Number
   Issue
(MSCN)    Dated
   Page

Scope of change (FOR INFORMATION ONLY)


EXHIBIT B3

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 8.0 dated 20 June 2011

A320 Backlog Aircraft (excluding Group 1 A320 Aircraft)

 

ATA

  

TITLE

   A320-200 SCNs
[***]

per  aircraft
  Estimated BFE Budget
[***]

per aircraft
  Comments
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]     [***]
[***]   

[***]

   [***]     [***]
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]   [***]  
[***]   

[***]

   [***]   [***]  
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

[***]

   [***]   [***]   [***]
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]   [***]  
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B3


EXHIBIT B3

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 8.0 dated 20 June 2011

A320 Backlog Aircraft (excluding Group 1 A320 Aircraft)

 

ATA

  

TITLE

   A320-200 SCNs
[***]

per  aircraft
  Estimated BFE Budget
[***]

per aircraft
 

Comments

[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]   [***]  
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]    
[***]   

[***]

   [***]     [***]
[***]   

[***]

   [***]     [***]
57-00   

Installation of sharklets

   [***]     Subject to industrial and certification contraints
72-00   

A320-200 engine selection - V2527-A5 at 25,400 lbf (**)

   [***]    
  

TOTAL OF SCNS AND ESTIMATED BFE BUDGET [***] PER AIRCRAFT

   [***]   [***]  

[***]

(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B3


EXHIBIT B4

JETBLUE A320NEO CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 8.0 dated 20 June 2011

A320 NEO Aircraft

 

LIST OF IRREVOCABLE SCNS ASSOCIATED WITH THE NEO OPTIONS

NB: These options shall be irrevocably part of the A320 NEO specification

          A320-200 NEO

ATA

  

TITLE

   SCN Budget
$[***]
per aircraft
[***]   

[***]

   [***]
57-00   

Installation of sharklets

   [***]
72-00   

A320-200 NEO engine selection : CFMI LEAP-X1A26 at 26,300 lbf (**) or PW PW1127G at 26,300 lbf (**)

   [***]
  

TOTAL OF IRREVOCABLE SCNS - [***] PER AIRCRAFT

   [***]

LIST OF ADDITIONAL SCNS

NB: Certain options from this list and currently available Airbus catalogues may not be applicable and/or certified for Aircraft equipped with New Engine Option in 2016 and 2017.

 

          A320-200 NEO        

ATA

  

TITLE

   SCN Budget
[***]
per aircraft
  Estimated
BFE Budget
[***]
per aircraft
  Comments
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]     [***]
[***]    [***]    [***]     [***]
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]   

[***]

[***]

   [***]   [***]   [***]
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]   

[***]

[***]

   [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]   [***]  
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]   [***]  
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]     [***]
[***]    [***]    [***]     [***]
  

TOTAL OF ADDITIONAL SCNS AND ESTIMATED BFE BUDGET - [***] PER AIRCRAFT

   [***]   [***]  
  

GRAND TOTAL SCN AND BFE BUDGET FOR A320-200 EQUIPPED WITH NEO - [***] PER AIRCRAFT

   [***]   [***]  

[***]

(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B4


EXHIBIT B5

JETBLUE A321 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A321-200 issue 5.0 dated 20 June 2011

A321 Backlog Aircraft

 

ATA

  

TITLE

   A321-200 SCNs
[***]
per aircraft
  Estimated BFE
Budget

[***]
per aircraft
  Comments
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]     [***]
[***]    [***]    [***]     [***]
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]   

[***]

[***]

[***]

[***]

   [***]   [***]   [***]

[***]

[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]   

[***]

[***]

[***]

[***]

   [***]    
[***]   

[***]

[***]

   [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]   

[***]

[***]

   [***]   [***]  
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    
[***]    [***]    [***]    

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B5


EXHIBIT B5

JETBLUE A321 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A321-200 issue 5.0 dated 20 June 2011

A321 Backlog Aircraft

 

ATA

  

TITLE

  

A321-200 SCNs

[***]

per aircraft

   Estimated  BFE
Budget

[***]
per aircraft
   

Comments

[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]      [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]     
[***]    [***]    [***]      [***]
[***]    [***]    [***]      [***]
57-00    Installation of sharklets    [***]      Subject to industrial and certification contraints
72-00   

A321-200 engine selection - V2533-A5 at [***] (***)

   Install : Incl. in A/F PriceEng : Engine Manufacturer     
  

TOTAL OF SCNS AND ESTIMATED BFE BUDGET - [***] PER AIRCRAFT

   [***]      [ ***]   

[***]

(***) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

Additional options for considerations

 

ATA

  

TITLE

   A321-200 SCNs
[***]
per aircraft
  Estimated BFE
Budget
[***]
per aircraft
   Comments
[***]    [***]    [***]      [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B5


EXHIBIT B6

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 6.0 dated 31st January 2005

Group 1 A320 Aircraft

 

EPAC/TDU

  

TITLE

   SCN ref   A320-200 SCNs
[***]
per aircraft
  Comments
[***]    [***]    [***]   [***]  
[***]    [***]    [***]     [***]
[***]    [***]    [***]     [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]     [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B6


EXHIBIT B6

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 6.0 dated 31st January 2005

Group 1 A320 Aircraft

 

EPAC/TDU

  

TITLE

   SCN ref   A320-200 SCNs
[***]
per aircraft
  Comments
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B6


EXHIBIT B6

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 6.0 dated 31st January 2005

Group 1 A320 Aircraft

 

EPAC/TDU

  

TITLE

   SCN ref   A320-200 SCNs
[***]
per aircraft
  Comments
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]     [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B6


EXHIBIT B6

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 6.0 dated 31st January 2005

Group 1 A320 Aircraft

 

EPAC/TDU

  

TITLE

   SCN ref   A320-200 SCNs
[***]
per aircraft
  Comments
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]   [***]
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B6


EXHIBIT B6

JETBLUE A320 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A320-200 issue 6.0 dated 31st January 2005

Group 1 A320 Aircraft

 

 

EPAC/TDU

  

TITLE

   SCN ref   A320-200 SCNs
[***]
per aircraft
  Comments
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
[***]    [***]    [***]   [***]  
  

TOTAL OF SCNS BUDGET - $US [***] PER AIRCRAFT

     [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY   Exh B6


EXHIBIT C

 

PART 1 SELLER PRICE REVISION FORMULA

 

1.1 Base Prices

The Base Price as quoted in Clause 3.1 of the Agreement is subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics, and in accordance with the provisions hereof.

 

1.2 Base Period

The Airframe Base Price has been established in accordance with the average economic conditions prevailing in December 2008, January 2009, February 2009 and corresponding to a theoretical delivery in January 2010 as defined by “ECIb” and “ICb” index values indicated hereafter.

 

1.3 Indexes

Labor Index: “Employment Cost Index for Workers in Aerospace manufacturing” hereinafter referred to as “ ECI336411W ”, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found in: Table 9, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group”, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, NAICS Code 336411, base month and year December 2005 = 100 ).

The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two (2) preceding months.

Index code for access on the Web site of the US Bureau of Labor Statistics: CIU2023211000000I.

Material Index: “Industrial Commodities” (hereinafter referred to as “ IC ”) as published in “PPI Detailed report” (found in Table 6. “Producer price indexes and percent changes for commodity groupings and individual items not seasonally adjusted” or such other names that may be from time to time used for the publication title and/or table). (Base Year 1982 = 100).

Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.

 

1.4 [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 1 of 13


1.5 General Provisions

 

1.5.1 Rounding

The Labor Index average and the Material Index average shall be computed to the first decimal. If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.

Each quotient shall be rounded to the nearest then thousandth (4 decimals). If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.

The final factor shall be rounded to the nearest ten thousandth (4 decimals).

The final price shall be rounded to the nearest whole number (0.5 or more rounded to 1).

 

1.5.2 Substitution of Indexes for Airbus Price Revision Formula

If;

(i) the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Airbus Price Revision Formula, or

(ii) the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or

(iii) the data samples used to calculate such Labor Index or such Material Index are substantially changed;

The Seller shall select a substitute index for inclusion in the Airbus Price Revision Formula (the “Substitute Index”).

The Substitute Index shall reflect as closely as possible the actual variance of the Labor Costs or of the material costs used in the calculation of the original Labor Index or Material Index as the case may be.

As a result of the selection of the Substitute Index, AIRBUS shall make an appropriate adjustment to the Airbus Price Revision Formula to combine the successive utilization of the original Labor Index or Material Index (as the case may be) and of the Substitute Index.

 

1.5.3 Final Index Values

The index values as defined in Clause 1.4. hereof shall be considered final and no further adjustment to the basic prices as revised at delivery of the Aircraft shall be made after Aircraft delivery for any subsequent changes in the published index values.

 

1.5.4 Limitation

Should the sum [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 2 of 13


PART 2 CFM INTERNATIONAL PRICE REVISION FORMULA

(APPLICABLE TO ENGINES ON A319 NEO AIRCRAFT, A320 NEO AIRCRAFT AND A321 NEO AIRCRAFT)

 

2.1 Propulsion System Reference Price

The “ Reference Price ” for a set of two (2)

CFM LEAP X-1A24 engines is US$[***] (US dollars – [***]),

CFM LEAP X-1A26 engines is US$[***] (US dollars [***]), and

CFM LEAP X-1A32 engines is US$[***] (US dollars – [***]).

The Reference Price applies to the engine type as specified in the Clause 2.3.2(i) of the Agreement.

The Reference Price is subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics and in accordance with the provisions of Clauses 2.4 and 2.5 hereof.

 

2.2 Reference Period

The Reference Price for a set of two (2) CFM LEAP-X engines has been established in accordance with the economic conditions prevailing for a theoretical delivery in [***] as defined by CFM INTERNATIONAL by the Reference Composite Price Index (CPI) [***] .

 

2.3 Indexes

Labor Index: “Employment Cost Index for Workers in Aerospace manufacturing” hereinafter referred to as “ ECI336411W ”, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found in: Table 9, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group”, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, NAICS Code 336411, base month and year December 2005 = 100, hereinafter multiplied by [***] and rounded to the first decimal place).

The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 3 of 13


Index code for access on the Web site of the US Bureau of Labor Statistics: CIU2023211000000I

Material Index: “Industrial Commodities” (hereinafter referred to as “ IC ”) as published in “PPI detailed report” (found in Table 6. “Producer price indexes and percent changes for commodity groupings and individual items not seasonally adjusted” or such other names that may be from time to time used for the publication title and/or table). (Base Year 1982 = 100).

Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.

 

2.4 Revision Formula

[***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 4 of 13


2.5 General Provisions

 

2.5.1 Roundings

(i) The Material index average ([***]) shall be rounded to the nearest second decimal place and the labor index average ([***]) shall be rounded to the nearest first decimal place.

(ii) CPIn shall be rounded to the nearest second decimal place.

(iii) The final factor ([***]) shall be rounded to the nearest third decimal place.

If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure. After final computation [***] shall be rounded to the nearest whole number (0.5 rounds to 1).

 

2.5.2 Final Index Values

The revised Reference Price at the date of Aircraft Delivery shall not be subject to any further adjustments in the indexes.

 

2.5.3 Interruption of Index Publication

If the US Department of Labor substantially revises the methodology of calculation or discontinues any of these indexes referred to hereabove, AIRBUS shall reflect the substitute for the revised or discontinued index selected by CFM INTERNATIONAL, such substitute index to lead in application to the same adjustment result, insofar as possible, as would have been achieved by continuing the use of the original index as it may have fluctuated had it not been revised or discontinued.

Appropriate revision of the formula shall be made to accomplish this result.

 

2.5.4 Annulment of the Formula

Should the above escalation provisions become null and void by action of the US Government, the Reference Price shall be adjusted due to increases in the costs of labor and materiel which have occurred from the period represented by the applicable Reference Composite Price Index to the twelfth (12th) month prior to the scheduled month of Aircraft Delivery.

 

2.5.5 Limitation

Should the ratio [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 5 of 13


PART 3 INTERNATIONAL AERO ENGINES PRICE REVISION FORMULA

(APPLICABLE TO ENGINES ON THE A319 BACKLOG AIRCRAFT, A320 BACKLOG AIRCRAFT, A321 BACKLOG AIRCRAFT AND GROUP 1 A320 AIRCRAFT)

 

3.1 Propulsion Systems Reference Price

The “ Reference Price ” for a set of two (2)

IAE V2524-A5 engines is US[***] (US dollars – [***]),

IAE V2527-A5 engines is US$[***] (US dollars – [***]),

IAE V2533-A5 engines is USD [***] (US dollars – [***]).

The Reference Price applies to the Engine type as specified in Clauses 2.3.1 and 2.3.3 of the Agreement.

This Reference Price is subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics, and in accordance with the provisions hereof.

 

3.2 Reference Period

The above Reference Price has been established in accordance with the averaged economic conditions prevailing in June 2005, July 2005 and August 2005 (delivery conditions January 2006), as defined, according to INTERNATIONAL AERO ENGINES by the [***] and [***], index values indicated in Clause 3.4. hereof.

 

3.3 Indexes

Labor Index: “Employment Cost Index for Workers in Aerospace manufacturing” hereinafter referred to as “ ECI336411W ”, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found in: Table 9, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group”, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, NAICS Code 336411, base month and year December 2005 = 100).

The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 6 of 13


Index code for access on the Web site of the US Bureau of Labor Statistics: CIU2023211000000I.

Material Index: “Industrial Commodities” (hereinafter referred to as “ IC ”) as published in “PPI detailed report” (found in Table 6. “Producer price indexes and percent changes for commodity groupings and individual items not seasonally adjusted” or such other names that may be from time to time used for the publication title and/or table). (Base Year 1982 = 100).

Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.

 

3.4 Revision Formula

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 7 of 13


3.5 General Provisions

 

3.5.1 Roundings

(i) [***] and ICn shall be calculated to the nearest tenth (1 decimal).

(ii) Each quotient ([***]) shall be calculated to the nearest ten-thousandth (4 decimals).

(iii) The final factor shall be rounded to the nearest ten-thousandth (4 decimals).

If the next succeeding place is five (5) or more the preceding decimal place shall be raised to the nearest higher figure.

After final computation [***] shall be rounded to the nearest whole number (0.5 rounds to 1).

 

3.5.2 Final Index Values

The revised Reference Price at the date of Aircraft delivery shall be the final price and shall not be subject to any further adjustments in the indexes.

If no final index values are available for any of the applicable month, the then published preliminary figures shall be the basis on which the Revised Reference Price shall be computed.

 

3.5.3 Interruption of Index Publication

If the US Department of Labor substantially revises the methodology of calculation or discontinues any of these indexes referred to hereabove, AIRBUS shall reflect the substitute for the revised or discontinued index selected by INTERNATIONAL AERO ENGINES, such substitute index to lead in application to the same adjustment result, insofar as possible, as would have been achieved by continuing the use of the original index as it may have fluctuated had it not been revised or discontinued.

Appropriate revision of the formula shall be made to accomplish this result.

 

3.5.4 Annulment of Formula

Should the above escalation provisions become null and void by action of the US Government, the Reference Price shall be adjusted due to increases in the costs of labor and materiel which have occurred from the period represented by the applicable Reference Price Indexes to the fifth (5th), sixth (6th) and seventh (7th) month prior to the scheduled Aircraft delivery.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 8 of 13


3.5.5 Limitation

Should the revised Reference Price [***], the final price shall be [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 9 of 13


PART 4 PRATT AND WHITNEY PRICE REVISION FORMULA

(APPLICABLE TO ENGINES ON A319 NEO AIRCRAFT, A320 NEO AIRCRAFT, AND A321 NEO AIRCRAFT)

 

4.1 Propulsion Systems Reference Price

The “ Reference Price” for a set of two (2)

PW1124G engines is US$[***] (US dollars – [***]),

PW1127G engines is US$[***] (US dollars – [***]), and

PW1133G engines is US$[***] (US dollars – [***]).

The Reference Price is subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics, and in accordance with the provisions hereof.

 

4.2 Base Period

The Reference Price has been established in accordance with the average economic conditions prevailing in December 2008, January 2009, February 2009 and corresponding to a theoretical delivery in January 2010 as defined by “[***]”, “[***]” and “[***]” index values indicated hereafter.

 

4.3 Indexes

Labor Index : “Employment Cost Index for Workers in Aerospace manufacturing” hereinafter referred to as “ECI336411W”, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found in Table 9, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group”, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, NAICS Code 336411, base month and year December 2005 = 100).

The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.

Index code for access on the Web site of the US Bureau of Labor Statistics: CIU2023211000000I.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 10 of 13


Material Index : “Industrial Commodities” (hereinafter referred to as “IC”) as published in “PPI Detailed Report” (found in Table 6. “Producer Price indexes and percent changes for commodity and service groupings and individual items not seasonally adjusted” or such other names that may be from time to time used for the publication title and/or table). (Base Year 1982 = 100).

Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15

Metal Index : “Metals and metal products” Code 10” (hereafter referred to as “C10”) as published in “PPI Detailed Report” (found in Table 6. “Producer Price indexes and percent changes for commodity and service groupings and individual items not seasonally adjusted” or such other names that may be from time to time used for the publications title and/or table). (Base 1982 = 100).

Index code for access on the Web site of the US Bureau of Labor Statistics: WPU10.

 

4.4 Revision formula

[***]

 

4.5 General Provisions

 

4.5.1 Roundings

The Labor Index average, the Material Index average, and the Metal Index average shall be computed to the first decimal. If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.

Each quotient ([***]), ([***]) and ([***]) shall be rounded to the nearest ten-thousandth (4 decimals). If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.

The final factor shall be rounded to the nearest ten-thousandth (4 decimals).

The final price shall be rounded to the nearest whole number (0.5 or more rounded to 1).

 

4.5.2 Substitution of Indexes for Price Revision Formula

If:

 

  (i) the United States Department of Labor substantially revises the methodology of calculation of the Labor Index , the Material Index, or the Metal Index as used in the Price Revision Formula, or

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 11 of 13


  (ii) the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index , such Material Index, or such Metal Index, or

 

  (iii) the data samples used to calculate such Labor Index , such Material Index, or such Metal Index are substantially changed;

Pratt and Whitney shall select a substitute index for inclusion in the Price Revision Formula (the “Substitute Index”) and AIRBUS shall reflect such Substitute Index.

The Substitute Index shall reflect as closely as possible the actual variance of the labor costs, of the material costs, or of the metal costs used in the calculation of the original Labor Index, Material Index, or Metal Index as the case may be.

 

EXH C – 12 of 13


As a result of the selection of the Substitute Index, an appropriate adjustment to the Price Revision Formula shall be performed, to combine the successive utilization of the original Labor Index, Material Index or Metal Index (as the case may be) and of the Substitute Index.

 

4.5.3 Final Index Values

The Index values as defined in Clause 4 above shall be considered final and no further adjustment to the adjusted Reference Price as revised at Aircraft Delivery (or payment of such revised amounts, as the case may be) shall be respectively made after Aircraft Delivery (or payment of such adjusted amounts, as the case may be) for any subsequent changes in the published Index values.

 

4.5.4 Limitation

Should the sum of [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH C – 13 of 13


EXHIBIT D

CERTIFICATE OF ACCEPTANCE

In accordance with the terms of [clause [ ]] of the purchase agreement dated [ day ] [ month ], 2011 and made between JetBlue Airways Corporation (the “ Customer ”) and Airbus S.A.S. as amended and supplemented from time to time (the “ Purchase Agreement ”), the technical acceptance tests relating to one Airbus A3[ ]-[ ] aircraft, bearing manufacturer’s serial number [ ], and registration mark [ ](the “ Aircraft ”) have taken place in [Blagnac/Hamburg].

In view of said tests having been carried out with satisfactory results, the Customer, [as agent of [insert the name of the lessor/SPC] (the “ Owner ”) pursuant to the [purchase agreement assignment] dated [ day ] [ month ] [ year ] , between the Customer and the Owner] hereby approves the Aircraft as being in conformity with the provisions of the Purchase Agreement and accepts the Aircraft for delivery in accordance with the provisions of the Purchase Agreement.

Such acceptance shall not impair the rights that may be derived from the warranties relating to the Aircraft set forth in the Purchase Agreement.

Any right at law or otherwise to revoke this acceptance of the Aircraft is hereby irrevocably waived.

IN WITNESS WHEREOF, the Customer, [as agent of the Owner] has caused this instrument to be executed by its duly authorized representative this      day of [ month ], [ year ] in [Blagnac/Hamburg].

 

CUSTOMER [as agent of OWNER ]
Name:
Title:
Signature:

 

EXH D – 1 of 1


EXHIBIT E

BILL OF SALE

Know all men by these presents that Airbus S.A.S., a Société par Actions Simplifiée existing under French law and having its principal office at 1 rond-point Maurice Bellonte, 31707 Blagnac Cedex, FRANCE (the “ Seller ”), was this [ day ] [ month ] [ year ] the owner of the title to the following airframe (the “ Airframe ”), the [engines/propulsion systems] as specified (the “[ Propulsion System ]”) and [all appliances, components, parts, instruments, accessories, furnishings, modules and other equipment of any nature], [excluding buyer furnished equipment (“ BFE ”),] incorporated therein, installed thereon or attached thereto on the date hereof (the “ Parts ”):

 

AIRFRAME :   [ PROPULSION SYSTEM] :
AIRBUS Model A3[ ]-[ ]   [Insert name of engine or propulsion system manufacturer] Model [ ]

MANUFACTURER’S

SERIAL NUMBER : [ ]

 

ENGINE SERIAL NUMBERS :

LH: [ ]

RH: [ ]

REGISTRATION MARK : [ ]  

[and [had] such title to the BFE as was acquired by it from [ insert name of vendor of the BFE ] pursuant to a bill of sale dated      [month] [year] (the “ BFE Bill of Sale ”)].

The Airframe, [Engines/Propulsion Systems] and Parts are hereafter together referred to as the “ Aircraft ”.

The Seller did this      day of [month] [year], sell, transfer and deliver all of its above described rights, title and interest in and to the Aircraft [and the BFE] to the following entity and to its successors and assigns forever, said Aircraft [and the BFE] to be the property thereof:

[ Insert Name/Address of Buyer ]

(the “ Buyer ”)

The Seller hereby warrants to the Buyer, its successors and assigns that it had [(i)] good and lawful right to sell, deliver and transfer title to the Aircraft to the Buyer and that there was conveyed to the Buyer good, legal and valid title to the Aircraft, free and clear of all liens, claims, charges, encumbrances and rights of others and that the Seller will warrant and defend such title forever against all claims and demands whatsoever [and (ii) such title to the BFE as Seller has acquired from [ insert name of vendor of the BFE ] pursuant to the BFE Bill of Sale].

This Bill of Sale shall be governed by and construed in accordance with the laws of [ same governing law as the Purchase Agreement ].

IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative this      day of [month], [year] in [Blagnac/Hamburg].

 

AIRBUS S.A.S.
Name:
Title:
Signature:

 

EXH E – 1 of 1


EXHIBIT F

S E R V I C E    L I F E    P O L I C Y

L I S T    O F    I T E M S

 

PA 1 of 2


EXHIBIT F

SELLER SERVICE LIFE POLICY

 

1 The Items covered by the Service Life Policy pursuant to Clause 12.2 are those Seller Items of primary and auxiliary structure described hereunder.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

PA 2 of 2


EXHIBIT G

TECHNICAL DATA INDEX

 

EXH G - 1 of 15


EXHIBIT G

TECHNICAL DATA INDEX

Where applicable data will be established in general compliance with ATA 100 Information Standards for Aviation Maintenance, and the applicable provisions for digital standard of ATA Specification 2200 (iSpec2200).

The following index identifies the Technical Data provided in support of the Aircraft.

The explanation of the table is as follows:

 

NOMENCLATURE   Self-explanatory.
ABBREVIATED DESIGNATION (Abbr)   Self-explanatory.
AVAILABILITY (Avail)  

Technical Data can be made available :

 

 

ON-LINE (ON) through the relevant service on AirbusWorld,

and / or

 

 

OFF-LINE (OFF) through the most suitable means applicable to the size of the concerned document (e.g CD or DVD).

FORMAT (Form)

Following Technical Data formats may be used:

 

 

SGML - Standard Generalized Mark-up Language, which allows further data processing by the Buyer.

 

 

XML - Extensible Mark-up Language, evolution of the SGML text format to cope with WEB technology requirements.

 

   

XML is used for data processing. Processed data shall be consulted through the e-doc Viewer FOCT - Flight Operations Consultation Tool.

 

   

XML data may be customized using Airbus customization tools (Flight Operations Documentation Manager , ADOC) or the Buyer’s own XML based editing tools.

 

 

CGM - Computer Graphics Metafile, format of the interactive graphics associated with the XML and /or SGML text file delivery.

 

 

PDF (PDF) - Portable Document Format allowing data consultation.

 

EXH G - 2 of 15


EXHIBIT G

 

 

Advanced Consultation Tool - refers to Technical Data consultation application that offers advanced consultation & navigation functionality compared to PDF. Both browser software & Technical Data are packaged together.

 

 

P1 / P2 - refers to manuals printed on one side or both sides of the sheet.

 

 

CD-P - refers to CD-Rom including Portable Document Format (PDF) Data.

 

 

CD-XML - Refers to CD-Rom including XML data

 

TYPE    C   CUSTOMIZED. Refers to manuals that are applicable to an individual Airbus customer/operator fleet or aircraft.
            G        GENERIC. Refers to manuals that are applicable for all Airbus aircraft types/models/series.
            E        ENVELOPE. Refers to manuals that are applicable to a whole group of Airbus customers for a specific aircraft type/model/series.
QUANTITY (Qty)   Self-explanatory for physical media.
DELIVERY (Deliv)  

Delivery refers to scheduled delivery dates and is expressed in either the number of corresponding days prior to first Aircraft delivery, or nil (0) referring to the Delivery Date of corresponding Aircraft.

 

The number of days indicated shall be rounded up to the next regular revision release date.

 

EXH G - 3 of 15


EXHIBIT G

OPERATIONAL MANUALS AND DATA

 

NOMENCLATURE

   Abbr    Avail    Form    Type    Qty   Deliv  

Comments

Flight Crew Operating Manual    FCOM    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
Flight Crew Training Manual    FCTM    ON    XML    C    [***]   [***]   FCTM is a supplement to FCOM, a “Pilot’s guide” for use in training and in operations
      OFF    CD-XML    C    [***]   [***]  
Cabin Crew Operating Manual    CCOM    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
Flight Manual    FM    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
      OFF    PDF    C    [***]   [***]   *PDF secure format integrated in the FOCT viewer, used for loading on board aircraft EFB, in agreement with Airworthiness Authorities.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 4 of 15


EXHIBIT G

OPERATIONAL MANUALS AND DATA

 

NOMENCLATURE

   Abbr    Avail    Form    Type    Qty   Deliv  

Comments

Master Minimum Equipment List    MMEL    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
Quick Reference Handbook    QRH    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
Trim Sheet    TS    OFF    Electronic
format
   C    [***]   [***]  

Transferred to the Buyer by electronic mail (MS Word or PDF or TIFF).

 

Note: additional document provided by the Seller : IATA Airport Handing Manual / AHM sections 515, 516, 560.

Weight and Balance Manual    WBM    ON    XML    C    [***]   [***]  
      OFF    CD-XML    C    [***]   [***]  
Performance Engineer’s Programs    PEP    ON    Performance
Computation
Tool
   C    [***]   [***]   A collection of aircraft performance software tools in a common interface.
      OFF    Performance
Computation
Tool on CD
   C    [***]   [***]  
Performance Programs Manual    PPM    OFF    CD-P    C    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 5 of 14


EXHIBIT G

MAINTENANCE AND ASSOCIATED MANUALS

 

NOMENCLATURE

   Abbr    Avail    Form    Type    Qty   Deliv  

Comments

AirN@v / Maintenance , including :

Aircraft Maintenance Manual - AMM

Illustrated Parts Catalog (Airframe)- IPC

Illustrated Parts Catalog (Powerplant)- PIPC*

Trouble Shooting Manual - TSM

Aircraft Schematics Manual - ASM

Aircraft Wiring Lists - AWL

Aircraft Wiring Manual- AWM

Electrical Standard Practices Manual-ESPM

   AirN@v /

Maintenance

   ON    Advanced
Consultation
Tool
   C    [***]   [***]  
      OFF    Advanced
Consultation
Tool on
DVD
   C    [***]   [***]  

AirN@v / Associated Data

Consumable Material List - CML

Standards Manual - SM

Electrical Standard Practices Manual - ESPM

Tool and Equipment Manual – TEM (*)

   AirN@v /

Associated

Data

   ON    Advanced
Consultation
Tool
   G    [***]   [***]   * including Tool and Equipment Manual / Index & Support Equipment Summary data
      OFF    Advanced
Consultation
Tool on
DVD
   G    [***]   [***]  
Technical Follow-up    TFU    ON    PDF    E    [***]   [***]   TFU for trouble shooting & maintenance, to be used with AirN@v
Aircraft Maintenance Manual    AMM    ON    SGML    C    [***]   [***]  
      OFF    SGML    C    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 6 of 14


EXHIBIT G

MAINTENANCE AND ASSOCIATED MANUALS

 

NOMENCLATURE

   Abbr    Avail    Form    Type    Qty   Deliv  

Comments

Aircraft Schematics Manual    ASM    ON    SGML    C    [***]   [***]   Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
      OFF    SGML    C    [***]   [***]  
Aircraft Wiring list    AWL    ON    SGML    C    [***]   [***]   Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
      OFF    SGML    C    [***]   [***]  
Aircraft Wiring Manual    AWM    ON    SGML    C    [***]   [***]   Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
      OFF    SGML    C    [***]   [***]  
Consumable Material List    CML    OFF    SGML    G    [***]   [***]  
Ecam System Logic Data    ESLD    ON    PDF    E    [***]   [***]  
      OFF    CD-P    E    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 7 of 14


EXHIBIT G

MAINTENANCE AND ASSOCIATED MANUALS

 

NOMENCLATURE

   Abbr    Avail    Form   Type    Qty   Deliv  

Comments

Electrical Load Analysis    ELA    OFF    PDF/MS
Word Excel
  C    [***]   [***]   One ELA supplied for each Aircraft, delivered one month after first Aircraft Delivery PDF File + Office automation format RTF & Excel file delivered on one single CD for ELA updating by the Buyer
Electrical Standard Practices Manual    ESPM    OFF    SGML   G    [***]   [***]  
Electrical Standard Practices booklet    ESP    OFF    P2*   G    [***]   [***]   * Pocket size format booklet, which provides maintenance personnel with quick and easy access for the identification of electrical equipment and the required tooling.
Flight Data Recording Parameter Library    FDRPL    OFF    Advanced
Consultation
Tool on CD
  E    [***]   [***]  
Illustrated Parts Catalog (Airframe)    IPC    ON    SGML   C    [***]   [***]   Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
      OFF    SGML   C    [***]    
Illustrated Parts Catalog (Powerplant)    PIPC    ON    PDF   C    [***]   [***]   Supplied by Propulsion Systems Manufacturer concurrently with the Airframe IPC.
      OFF    CD-P   C    [***]   [***]  

AirN@v / Planning , including

Maintenance Planning Document - MPD

   AirN@v/
Planning
   ON    Advanced
Consultation
Tool
  E    [***]   [***]  

In addition to MPD in AirN@v consultable format, AirN@v / Planning includes additional MPD files in the following downloadable formats: - PDF format

 

- MS XLS ( Excel) format

 

- TSDF / Text Structured Data File format (specific ASCII for MIS and Database upload )

 

- SGML format for further processing

 

Life Limited Parts information is included in the Airworthiness Limitation Section (ALS)

      OFF    Advanced
Consultation
Tool on DVD
  E    [***]   [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 8 of 14


EXHIBIT G

MAINTENANCE AND ASSOCIATED MANUALS

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

Maintenance Review Board Report - MRBR

Airworthiness Limitation Section - ALS

  

MRBR

ALS

   ON    PDF    E    [***]    [***]  
Tool & Equipment Bulletins    TEB    ON    PDF    E    [***]    [***]  
Tool and Equipment Drawings    TED    ON    Advanced Consultation Tool    E    [***]    [***]  

AirN@v / Engineering , including:

Airworthiness Directives - AD

European Airworthiness Directives - EUAD

(incl. French DGAC AD’s)

All Operator Telex - AOT

Operator Information Telex - OIT

Flight Operator Telex - FOT

Modification - MOD

Modification Proposal - MP

Service Bulletin - SB

Service Information Letter - SIL

Technical Follow-Up - TFU

Vendor Service Bulletin - VSB

   AirN@v/ Engineering    ON    Advanced Consultation Tool    C    [***]    [***]   AirN@v Engineering is an electronic index used for identification of the references and links between the Seller’s and Suppliers’ engineering documents
      OFF    Advanced Consultation Tool on DVD    C    [***]    [***]  
Trouble Shooting Manual    TSM             [***]    [***]  
      ON    SGML    C    [***]    [***]   Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200)
      OFF    SGML    C    [***]    [***]   Effective CD delivery will only take place upon the Buyer’s express request.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 9 of 14


EXHIBIT G

STRUCTURAL MANUALS

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

AirN@v / Repair , including:

Structural Repair Manual (*) - SRM

Non Destructive Testing Manual - NTM

   AirN@v / Repair    ON    Advanced Consultation Tool    E    [***]    [***]  
      OFF    Advanced Consultation Tool on DVD    E    [***]    [***]  
Structural Repair Manual    SRM    ON    SGML    E    [***]     
      OFF    SGML    E    [***]     
Non Destructive Testing Manual    NTM    ON    SGML    E    [***]    [***]  
      OFF    SGML    E    [***]    [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 10 of 14


EXHIBIT G

OVERHAUL DATA

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

AirN@v / Workshop , including:

Component Maintenance Manual Manufacturer - CMMM

Duct Fuel Pipe Repair Manual - DFPRM

   AirN@v / Workshop    ON    Advanced Consultation Tool    E    [***]    [***]  
      OFF    Advanced Consultation Tool on DVD    E    [***]    [***]  
Component Maintenance Manual Manufacturer    CMMM    ON    SGML    E    [***]    [***]  
      OFF    SGML    E    [***]    [***]  
Component Maintenance Manual Vendor    CMMV    OFF    CD-P    E    [***]    [***]   * Vendor Supply in digital PDF format.
      ON    PDF    E    [***]    [***]   Available from the “Supplier Technical Documentation On-Line Service” in AirbusWorld
Component Documentation Status    CDS    OFF    CD    C    [***]    [***]   Revised until 180 days after first Aircraft Delivery
Component Evolution List    CEL    ON    PDF    G    [***]    [***]  
      OFF    CD-P    G    [***]    [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 11 of 14


EXHIBIT G

ENGINEERING DOCUMENTS

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

Mechanical Drawings, including the Drawing Picture, Parts List / Parts Usage    MD    ON    Advanced Consultation Tool    C    [***]    [***]  

Seller Installation, Assembly and Detailed part Drawings for Structure & System installations, fitted on the Buyer’s fleet or Aircraft . They cover the Aircraft “as designed”, ie in its original configuration at first Aircraft Delivery.

Repair drawings are supplied upon specific Buyer request.

Buyer’s queries shall be issued in connection with an approved document: SB, SRM or RAS (Repair Assessment Sheet)

Mechanical Drawings include:

2D Drawing sheets

Parts List / Parts Usage (in PDF).

Standards Manual    SM    ON    SGML    G    [***]    [***]  
      OFF    SGML    G    [***]    [***]  
Process and Material Specification    PMS    ON    PDF    G    [***]    [***]  
      OFF    CD-P    G    [***]    [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 12 of 14


EXHIBIT G

MISCELLANEOUS PUBLICATIONS

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

Airplane Characteristics for Airport Planning - AC

Maintenance Facility Planning - MFP

   AC/MFP    ON    PDF    E    [***]    [***]   Available On-Line in AirbusWorld
      OFF    CD-P    E    [***]    [***]  

Grouped on one single CD

Fallback solution to the on-line AC / MFP

ATA 100 Index    ATI    ON    PDF    E    [***]    [***]   6 Digits ATA 100 Index
C@DETS /Technical Data Training Courseware and Software    C@DETS    ON    Advanced Consultation Tool on CD    G    [***]    [***]  

Technical Data self-tutorial training which provides basic familiarization tailored for Maintenance and Engineering personnel.

It is AirN@v Services oriented and available on AirbusWorld for downloading by module as required.

      OFF    Advanced Consultation Tool    G    [***]    [***]  
Aircraft Recovery Manual    ARM    ON    PDF    E    [***]    [***]  
      OFF    CD-P    E    [***]    [***]  
Aircraft Rescue & Firefighting Chart    ARFC    ON    PDF    E    [***]    [***]   Chart can be downloaded from AirbusWorld either in TIFF or PDF format
      OFF    P1    E    [***]    [***]   Full size charts, which are available in poster format (530 x 640 mm)
Cargo Loading System Manual    CLS    ON    PDF    E    [***]    [***]  
      OFF    CD-P    E    [***]    [***]   One CLS per delivered Aircraft
List of Effective Technical Data    LETD    ON    PDF    C    [***]    [***]  

The LETD provides, for each Technical Data, information about:

 

- Applicable issue and revision date,

 

- Shipping information with search functions by manual or delivery address criteria,

 

- Tracking of shipments through the Carrier Website.

List of Radioactive and Hazardous Elements    LRE    ON    PDF    G    [***]    [***]  
      OFF    CD-P    G    [***]    [***]  

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 13 of 14


EXHIBIT G

MISCELLANEOUS PUBLICATIONS

 

NOMENCLATURE

  

Abbr

  

Avail

  

Form

  

Type

  

Qty

  

Deliv

 

Comments

Service Bulletins    SB    ON    Advanced Consultation Tool    C    [***]    [***]   Full SB content and SB search functions are available from AirN@v / Engineering on AirbusWorld
      OFF    CD-P    C    [***]    [***]   CD available for simplified SBs only
Supplier Product Support Agreements 2000    SPSA    ON    PDF    G    [***]    [***]  
Transportability Manual    TM    OFF    CD-P    G    [***]    [***]  

Vendor Information Manual +

Aircraft On Ground & Repair Guide

   VIM + AOG & RG    ON   

Advanced Consultation

Tool

   G    [***]    [***]   Combined Vendor Information Manual and Aircraft On Ground & Repair Guide. It supplies information on Supplier Support locations, Repair Stations, stock locations and distributors around the world for Airbus Customers.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH G - 14 of 14


EXHIBIT H

M A T E R I A L

S U P P L Y AND S E R V I C E S

 

EXH H - 1 of 11


1. GENERAL

 

1.1 Scope

 

1.1.1 This Exhibit H sets forth the terms and conditions for the support and services offered by the Seller to the Buyer with respect to Material (as defined below).

 

1.1.2 References made to Articles will be deemed to refer to articles of this Exhibit H unless otherwise specified.

 

1.1.3 For purposes of this Exhibit H:

 

1.1.4 the term “ Supplier ” will mean any supplier providing any of the Material listed in Article 1.2.1 and the term “ Supplier Part ” will mean an individual item of Material.

 

1.1.5 The term “ SPEC 2000 ” means the “E-Business Specification for Materiels Management” document published by the Air Transport Association of America.

 

1.2 Material Categories

 

1.2.1 Each of the following constitutes “ Material ” for purposes of this Exhibit H:

 

  (i) Seller parts;

 

  (ii) Supplier Parts classified as Repairable Line Maintenance Parts (as defined in SPEC 2000);

 

  (iii) Supplier Parts classified as Expendable Line Maintenance Parts (as defined in SPEC 2000);

 

  (iv) Seller and Supplier ground support equipment and specific-to-type tools

where “ Seller Parts ” means Seller’s proprietary parts bearing a part number of the Seller or for which the Seller has the exclusive sales rights.

 

1.2.2 Propulsion Systems, engine exchange kits, their accessories and parts for any of the foregoing, are not covered under this Exhibit H.

 

1.3 Term

During a period commencing on the date hereof and continuing [***] (the “ Term ”), the Seller will maintain, or cause to be maintained, a reasonable stock of Seller Parts.

The Seller will use reasonable efforts to obtain a similar service from all Suppliers of Supplier Parts originally installed on an Aircraft at Delivery.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH H - 2 of 11


1.4 Airbus Material Store

 

1.4.1 AACS Spares Center

The Seller has established and will maintain or cause to be maintained, during the Term, a US store (“ US Spares Center ”). The US Spares Center will be operated twenty-four (24) hours per day, seven (7) days per week, for the handling of AOG and critical orders for Seller Parts

The Seller will make reasonable efforts to deliver Seller Parts to the Buyer from the US Spares Center.

 

1.4.2 Material Support Center, Germany

The Seller has established its material headquarters in Hamburg, Germany (the “ Airbus Material Center ”) and will, during the Term, maintain, or have maintained on its behalf, a central store of Seller Parts. The Airbus Material Center will be operated twenty-four (24) hours per day, seven (7) days per week.

 

1.4.3 Other Points of Shipment

 

1.4.3.1 In addition to the AACS Spares Center and the Airbus Material Center, the Seller and its Affiliates operate a global network of regional satellite stores (The “ Regional Satellite Stores ”). A list of such stores will be provided to the Buyer upon the Buyer’s request.

 

1.4.3.2 The Seller reserves the right to effect deliveries from distribution centers other than the US Spares Center or the Airbus Material Center, which may include the Regional Satellite Stores or any other production or Supplier’s facilities.

 

1.5 Customer Order Desk

The Seller operates a “ Customer Order Desk” , the main functions of which are:

 

  (i) Management of order entries for all priorities, including Aircraft On Ground (“AOG”);

 

  (ii) Management of order changes and cancellations;

 

  (iii) Administration of Buyer’s routing instructions;

 

  (iv) Management of Material returns;

 

  (v) Clarification of delivery discrepancies;

 

  (vi) Issuance of credit and debt notes.

The Buyer hereby agrees to communicate its orders for Material to the Customer Order Desk either in electronic format (SPEC 2000) or via the Internet.

 

EXH H - 3 of 11


1.7 Commitments of the Buyer

 

1.7.1 During the Term, the Buyer agrees to purchase from

 

  (a) the Seller, AACS or the Seller’s licensee(s) the Seller Parts required for the Buyer’s own needs; or

 

  (b) other operators or purchase Seller Parts from said operators or from distributors, provided said Seller Parts were originally designed by the Seller and manufactured by the Seller or its licensees.

 

1.7.2 Subject to the express further agreement of the Seller in relation to Article 1.7.2 (ii) below, the Buyer may manufacture, exclusively for its own use parts, equivalent to Seller Parts, provided, however, that it may only do so in one of the following circumstances:

 

  (i) after expiration of the Term, the concerned Seller Parts are out of stock;

 

  (ii) Seller Parts are needed to perform confirmed AOG repairs upon any Aircraft delivered under the Agreement and are not available from the Seller, its licensees or other approved sources within a lead time shorter than or equal to the time in which the Buyer can manufacture such parts;

 

  (iii) when a Seller Part is identified as “Local Manufacture” in the Illustrated Parts Catalog.

 

1.7.3.1 The rights granted to the Buyer in Article 1.7.2 will not in any way be construed as a license, nor will they in any way obligate the Buyer to pay any license fee or royalty, nor will they in any way be construed to affect the rights of third parties.

 

1.7.3.2 If the Buyer manufactures any parts pursuant to Article 1.7.2, the Buyer will be solely responsible for such manufacturing and any use made of the manufactured parts, and the confirmation given by the Seller under Article 1.7.2 will not be construed as express or implicit approval either of the Buyer in its capacity as manufacturer of such parts or of the manufactured parts.

The Buyer will also be solely responsible to ensure that such manufacturing is performed in accordance with the relevant procedures and Aviation Authority requirements.

THE SELLER WILL NOT BE LIABLE FOR, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY MANUFACTURING OF ANY PART UNDERTAKEN BY THE BUYER UNDER ARTICLE 1.7.2 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS EXHIBIT H WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER.

 

EXH H - 4 of 11


1.7.3.3 The Buyer will allocate its own part number to any part manufactured in accordance with Article 1.7.2. The Buyer will under no circumstances be allowed to use the Airbus part number of the Seller Part to which such manufactured part is intended to be equivalent.

 

1.7.3.4 The Buyer will not be entitled to sell or lend any part manufactured under the provisions of Article 1.7.3 to any third party.

 

2. INITIAL PROVISIONING

 

2.1 Period

The initial provisioning period commences with the Pre-Provisioning Meeting, as defined in Article 2.2.1, and expires on the ninetieth (90th) day after Delivery of the last Aircraft firmly ordered under the Agreement as of the date hereof (“ Initial Provisioning Period ”).

 

2.2 Pre-Provisioning Meeting

 

2.2.1 The Seller will organize a pre-provisioning meeting at AACS Spares Center or at the Airbus Material Center, or at any other agreed location, for the purpose of setting an acceptable schedule and working procedure for the preparation of the initial issue of the Provisioning Data and the Initial Provisioning Conference referred to in Articles 2.3 and 2.4 below (the “ Pre-Provisioning Meeting ”).

During the Pre-Provisioning Meeting, the Seller will familiarize the Buyer with the provisioning processes, methods and formulae of calculation and documentation.

 

2.2.2 The Pre-Provisioning Meeting will take place on an agreed date that is no later than nine (9) months prior to Scheduled Delivery Month of the first Aircraft, allowing a minimum preparation time of eight (8) weeks for the Initial Provisioning Conference.

 

2.3 Initial Provisioning Conference

The Seller will organize an initial provisioning conference at the AACS Spares Center or at the Airbus Material Center (the “ Initial Provisioning Conference ”), the purpose of which will be to agree the material scope and working procedures to accomplish the initial provisioning of Material (the “ Initial Provisioning ”).

The Initial Provisioning Conference will take place at the earliest eight (8) weeks after Aircraft Manufacturer Serial Number allocation or Contractual Definition Freeze, whichever occurs last and latest six (6) months before the Scheduled Delivery Month of the first Aircraft.

 

2.4 Provisioning Data

 

2.4.1 Provisioning data generally in accordance with SPEC 2000, Chapter 1, for Material described in Articles 1.2.1 (i) through 1.2.1 (iii) (“ Provisioning Data ”) will be supplied by the Seller to the Buyer in the English language, in a format and timeframe to be agreed during the Pre-Provisioning Meeting.

 

2.4.1.1 Unless a longer revision cycle has been agreed, the Provisioning Data will be revised every ninety (90) days up to the end of the Initial Provisioning Period.

 

EXH H - 5 of 11


2.4.1.2 The Seller will ensure that Provisioning Data is provided to the Buyer in time to permit the Buyer to perform any necessary evaluation and to place orders in a timely manner.

 

2.4.1.3 Provisioning Data generated by the Seller will comply with the configuration of the Aircraft as documented three (3) months before the date of issue.

This provision will not cover:

 

  (i) Buyer modifications not known to the Seller,

 

  (ii) other modifications not approved by the Seller’s Aviation Authorities.

 

2.4.2 Supplier-Supplied Data

Provisioning Data relating to each Supplier Part (both initial issue and revisions) will be produced by Supplier thereof and may be delivered to the Buyer either by the Seller or such Supplier. It is agreed and understood by the Buyer that the Seller will not be responsible for the substance, accuracy or quality of such data. Such Provisioning Data will be provided in either SPEC 2000 format or any other agreed format.

 

2.4.3 Supplementary Data

The Seller will provide the Buyer with data supplementary to the Provisioning Data, comprising local manufacture tables, ground support equipment, specific-to-type tools and a pool item candidate list.

 

2.5 Commercial Offer

Upon the Buyer’s request, the Seller will submit a commercial offer for Initial Provisioning Material.

 

2.6 Delivery of Initial Provisioning Material

 

2.6.1 During the Initial Provisioning Period, Initial Provisioning Material will conform to the latest known configuration standard of the Aircraft for which such Material is intended as reflected in the Provisioning Data transmitted by the Seller.

 

2.6.2 The delivery of Initial Provisioning Material will take place according to the conditions specified in the commercial offer mentioned in Article 2.5.

 

2.6.3 All Initial Provisioning Material will be packaged in accordance with ATA 300 Specification.

 

EXH H - 6 of 11


2.7 Buy-Back Period and Buy-Back of Initial Provisioning Surplus Material

 

  a)

The “ Buy-Back Period ” is defined as the period starting one (1) year after and ending four and one-half (4  1 / 2 ) years after Delivery of the first Aircraft to the Buyer.

 

  b) At any time during the Buy-Back Period, the Buyer will have the right to return to the Seller solely Seller Parts as per Article 1.2.1 (i) or Supplier Parts as per Article 1.2.1 (ii), subject to the Buyer providing sufficient evidence that such Material fulfils the conditions defined hereunder.

 

  c) Material as set forth in Article b) above will be eligible for Buy-Back provided:

 

  i) The Material is unused and undamaged and is accompanied by the Seller’s original documentation (tag, certificates);

 

  ii) The Seller provided the Buyer with an Initial Provisioning recommendation for such Material at the time of the Initial Provisioning Conference based upon a maximum protection level of ninety-six percent (96 %) and a maximum transit time of twenty (20) days;

 

  iii) The quantity procured by the Buyer was not in excess of the provisioning quantities recommended by the Seller;

 

  iv) The Material was purchased for Initial Provisioning purposes by the Buyer directly from the Seller;

 

  v) The Material ordered by the Buyer is identified as an Initial Provisioning order and was placed on routine, and not expedite, basis;

 

  vi) The Material and its components have at least ninety percent (90 %) shelf life remaining when returned;

 

  vii) The Material is returned to the Seller by the Buyer and has effectively been received and accepted by the Seller before the end of the Buy-Back Period.

[***]

 

  e) In the event of the Buyer electing to procure Material in excess of the Seller’s recommendation, the Buyer will notify the Seller thereof in writing, with due reference to the present Article 2.7. The Seller’s acknowledgement and agreement in writing will be necessary before any Material in excess of the Seller’s Initial Provisioning recommendation will be considered for Buy-Back.

 

  f) [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH H - 7 of 11


g) Transportation costs for the agreed return of Material under this Article 2.7 will be borne by [***].

 

3. OTHER MATERIAL SUPPORT

 

3.1 As of the date hereof, the Seller currently offers various types of parts support through the Customer Services Catalog on the terms and conditions set forth therein from time to time, including, but not limited to the lease of certain Seller Parts, the repair of Seller Parts and the sale or lease of ground support equipment and specific-to-type tools.

 

4 WARRANTIES

 

4.1 Seller Parts

Subject to the limitations and conditions as hereinafter provided, the Seller warrants to the Buyer that all Seller Parts, sold under this Exhibit H will at delivery to the Buyer:

 

  (i) be free from defects in material.

 

  (ii) be free from defects in workmanship, including without limitation processes of manufacture.

 

  (iii) be free from defects arising from failure to conform to the applicable specification for such part.

 

4.1.1 Warranty Period

 

4.1.1.1 The warranty period for Seller Parts is [***] from delivery of such parts to the Buyer.

 

4.1.1.2 Whenever any Seller Part that contains a defect for which the Seller is liable under Article 4.1 has been corrected, replaced or repaired pursuant to the terms of this Article 4.1, the period of the Seller’s warranty with respect to such corrected, repaired or replacement Seller Part, as the case may be, will be the remaining portion of the original warranty period or twelve (12) months, whichever is longer.

 

4.1.2 Buyer’s Remedy and Seller’s Obligation

The Buyer’s remedy and Seller’s obligation and liability under this Article 4.1 are limited to [***].

The Seller may alternatively [***].

The provisions of Clauses 12.1.5 through 12.1.11 of the Agreement will apply to claims made pursuant to this Article 4.1.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

EXH H - 8 of 11


4.2 Supplier Parts

With respect to Supplier Parts to be delivered to the Buyer under this Exhibit H, the Seller agrees to transfer to the Buyer the benefit of any warranties, which the Seller may have obtained from the corresponding Suppliers and the Buyer hereby agrees that it will accept the same.

 

4.3 Waiver, Release and Renunciation

THIS ARTICLE 4 (INCLUDING ITS SUBPARTS) SETS FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART, MATERIAL, LEASED PART, OR SERVICES DELIVERED BY THE SELLER UNDER THIS AGREEMENT.

THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS ARTICLE 4 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE SELLER PARTS, MATERIALS, LEASED PARTS, OR SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER AND ITS SUPPLIERS, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY SELLER PART, MATERIAL, LEASED PART, OR SERVICES DELIVERED BY THE SELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:

 

  (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE;

 

  (2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

 

  (3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;

 

  (4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;

 

  (5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;

 

  (6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;

 

  (7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:

 

  (a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;

 

EXH H - 9 of 11


  (b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;

 

  (c) LOSS OF PROFITS AND/OR REVENUES;

 

  (d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.

THE WARRANTIES PROVIDED BY THIS AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF THIS ARTICLE 4 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS ARTICLE 4 WILL REMAIN IN FULL FORCE AND EFFECT.

FOR THE PURPOSES OF THIS ARTICLE 4, THE “SELLER” WILL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS, SUBCONTRACTORS, AND AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.

 

4.4 Duplicate Remedies

The remedies provided to the Buyer under this Article 4 as to any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Article 4 for any particular defect for which remedies are provided under this Article 4; provided, however, that the Buyer will not be entitled to elect a remedy under one part of this Article 4 that constitutes a duplication of any remedy elected by it under any other part hereof for the same defect. The Buyer’s rights and remedies herein for the nonperformance of any obligations or liabilities of the Seller arising under these warranties will be in monetary damages limited to the amount the Buyer expends in procuring a correction or replacement for any covered part subject to a defect or nonperformance covered by this Article 4, and the Buyer will not have any right to require specific performance by the Seller.

 

5. COMMERCIAL CONDITIONS

5.1

Delivery Terms

All Material prices are quoted on the basis of Free Carrier (FCA) delivery terms, without regard to the place from which such Material is shipped. The term “ Free Carrier (FCA) ” is as defined by publication n° 560 of the International Chamber of Commerce, published in January 2000.

 

5.2 Payment Procedures and Conditions

All payments under this Exhibit H will be made in accordance with the terms and conditions set forth in the then current Customer Services e-Catalog.

 

EXH H - 10 of 11


5.3 Title

Title to any Material purchased under this Exhibit H will remain with the Seller until full payment of the invoices and interest thereon, if any, has been received by the Seller.

The Buyer hereby undertakes that Material title to which has not passed to the Buyer, will be kept free from any debenture or mortgage or any similar charge or claim in favour of any third party.

 

5.4 Cessation of Deliveries

The Seller has the right to restrict, stop or otherwise suspend deliveries if the Buyer fails to meet its obligations set forth in this Exhibit H.

 

6. EXCUSABLE DELAY

Clauses 10.1 and 10.2 of the Agreement will apply, mutatis mutandis, to all Material support and services provided under this Exhibit H.

 

7. TERMINATION OF MATERIAL PROCUREMENT COMMITMENTS

 

7.1 If the Agreement is terminated with respect to any Aircraft, then the rights and obligations of the parties with respect to undelivered spare parts, services, data or other items to be purchased hereunder and which are applicable to those Aircraft for which the Agreement has been terminated will also be terminated. Unused Material in excess of the Buyer’s requirements due to such termination may be repurchased by the Seller, at the Seller’s option, as provided in Article 2.7.

 

8. INCONSISTENCY

In the event of any inconsistency between this Exhibit H and the Customer Services Catalog or any order placed by the Buyer, this Exhibit H will prevail to the extent of such inconsistency.

 

EXH H - 11 of 11


LETTER AGREEMENT NO. 1

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: PURCHASE INCENTIVES

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 1 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA1    1 of 6


1 A319 BACKLOG AIRCRAFT

 

1.1 In respect of each A319 Backlog Aircraft that is sold by the Seller and purchased by the Buyer, the Seller will provide to the Buyer the following credits (collectively, the “ A319 Backlog Aircraft Credit Memoranda ”):

[***]

 

1.2 The A319 Backlog Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

1.3 The A319 Backlog Aircraft Credit Memoranda will be [***] of each A319 Aircraft that is sold by the Seller and purchased by the Buyer. The A319 Backlog Aircraft Credit Memoranda will be [***]. Unless the Buyer gives the Seller notice to the contrary at least [***] before Delivery of an A319 Backlog Aircraft, the A319 Backlog Aircraft Credit Memoranda will be [***] of the A319 Backlog Aircraft.

 

2 A320 BACKLOG AIRCRAFT (Excluding Group 1 A320 Aircraft)

 

2.1 In respect of each A320 Backlog Aircraft (excluding Group 1 A320 Aircraft) that is sold by the Seller and purchased by the Buyer, the Seller will provide to the Buyer the following credits (collectively, the “ A320 Backlog Aircraft Credit Memoranda ”):

[***]

 

2.2 The A320 Backlog Aircraft Credit Memoranda are quoted at delivery conditions prevailing in A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

2.3 The A320 Backlog Aircraft Credit Memoranda will be [***] of each A320 Backlog Aircraft that is sold by the Seller and purchased by the Buyer. The A320 Backlog Aircraft Credit Memoranda will be [***]. Unless the Buyer gives the Seller notice to the contrary at least [***] [***] before Delivery of an A320 Backlog Aircraft, the A320 Backlog Aircraft Credit Memoranda will be [***] of the A320 Backlog Aircraft.

 

3 A321 BACKLOG AIRCRAFT

 

3.1 In respect of each A321 Backlog Aircraft that is sold by the Seller and purchased by the Buyer, the Seller will provide to the Buyer the following credits (collectively, the “ A321 Backlog Aircraft Credit Memoranda ”):

[***]

 

3.2 The A321 Backlog Aircraft Credit Memoranda are quoted at delivery conditions prevailing in A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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3.3 The A321 Backlog Aircraft Credit Memoranda will be [***] of each A321 Backlog Aircraft that is sold by the Seller and purchased by the Buyer. The A321 Backlog Aircraft Credit Memoranda will be [***] Unless the Buyer gives the Seller notice to the contrary at least ten (10) days before Delivery of an A321 Backlog Aircraft, the A321 Backlog Aircraft Credit Memoranda will be [***] of the A321 Backlog Aircraft.

 

4 A319 NEO AIRCRAFT

 

4.1 In respect of each A319 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the “ A319 NEO Aircraft Credit Memoranda ”):

[***]

 

4.2 The A319 NEO Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

4.3 The A319 NEO Aircraft Credit Memoranda will be [***] of each A319 NEO Aircraft. The A319 NEO Aircraft Credit Memoranda will be [***]. Unless the Buyer gives the Seller notice to the contrary at least [***] before Delivery of an A319 NEO Aircraft, the A319 NEO Aircraft Credit Memoranda will be [***] of the A319 NEO Aircraft.

 

5 A320 NEO AIRCRAFT

 

5.1 In respect of each A320 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the “ A320 NEO Aircraft Credit Memoranda ”):

[***]

 

5.2 The A320 NEO Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

5.3 The A320 NEO Aircraft Credit Memoranda will be [***] of each A320 NEO Aircraft. The A320 NEO Aircraft Credit Memoranda will be [***] . Unless the Buyer gives the Seller notice to the contrary at least [***] before Delivery of an A320 NEO Aircraft, the A320 NEO Aircraft Credit Memoranda will be [***] of the A320 NEO Aircraft.

 

6 A321 NEO AIRCRAFT

 

6.1 In respect of each A321 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the “ A321 NEO Aircraft Credit Memoranda ”):

[***]

 

6.2 The A321 NEO Aircraft Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula, [***] in accordance with Paragraph 8 of this Letter Agreement.

 

6.3 The A321 NEO Credit Memoranda will be [***] of each A321 NEO Aircraft. The A321 NEO Credit Memoranda will be [***] . Unless the Buyer gives the Seller notice to the contrary at least [***] before Delivery of an A321 NEO Aircraft, the A321 NEO Aircraft Credit Memoranda will be [***] of the A321 NEO Aircraft.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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7 GROUP 1 A320 AIRCRAFT

 

7.1 In respect of each Group 1 A320 Aircraft, the Seller will provide to the Buyer the following credits (collectively, the “ Group 1 Aircraft Credit Memoranda ”):

 

  [***]

 

 

7.2 The Group 1 Aircraft Credit Memoranda are quoted at delivery conditions prevailing in A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision, [***] in accordance with Paragraph 8 of Letter Agreement.

 

7.3 The Group 1 Aircraft Credit Memoranda will be [***] of each Group 1 A320 Aircraft that is sold by the Seller and purchased by the Buyer. The Group 1 Aircraft Credit Memoranda will be [***] . Unless the Buyer gives the Seller notice to the contrary at least [***] before Delivery of a Group 1 A320 Aircraft, the Group 1 Aircraft Credit Memoranda will [***] of the Group 1 A320 Aircraft.

 

8 [***]

 

9 [***]

 

10 [***]

 

11 [***]

 

12 [***]

 

13 [***]

 

14 [***]

 

15 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 15 will be void and of no force or effect.

 

16 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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17 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

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If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

Mark D. Powers

Its:   Chief Financial Officer

 

LA1    6 of 6


LETTER AGREEMENT NO. 2

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: PAYMENTS

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 2 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

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1 PREDELIVERY PAYMENTS

 

1.1 For Backlog Aircraft, Clauses 5.3.2 and 5.3.3 of the Agreement are deleted in their entirety and replaced by Clauses 5.3.2 and 5.3.3 below between the QUOTE and UNQUOTE:

QUOTE

 

  5.3.2 The Predelivery Payment Reference Price for a Backlog Aircraft to be delivered in [***] is determined in accordance with the following formula:

[***]

 

  5.3.3 Predelivery Payments will be paid according to the following schedule.

 

Payment Date

   Percentage of
Predelivery
Payment

Reference  Price

1st Payment

   -  [***]    [***]

[***]

2nd Payment

   -  [***]    [***]

3rd Payment

   -  [***]    [***]
     

 

TOTAL PAYMENT PRIOR TO DELIVERY

   [***]

In the event of the above schedule resulting in any Predelivery Payment falling due prior to the date of signature of the Agreement, such Predelivery Payments shall be made upon signature of this Agreement.

UNQUOTE

 

1.2 For NEO Aircraft, Clauses 5.3.2 and 5.3.3 of the Agreement are deleted in their entirety and replaced by Clauses 5.3.2 and 5.3.3 below between the QUOTE and UNQUOTE:

QUOTE

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  5.3.2 The Predelivery Payment Reference Price for a NEO Aircraft to be delivered [***] T is determined in accordance with the following formula:

[***]

 

  5.3.3 Predelivery Payments will be paid according to the following schedule.

 

Payment Date

   Percentage of
Predelivery
Payment

Reference  Price

[***]

   -  [***]    [***]

[***]

[***]

   -  [***]    [***]

[***]

   -  [***]    [***]
     

 

TOTAL PAYMENT PRIOR TO DELIVERY

   [***]

In the event of the above schedule resulting in any Predelivery Payment falling due prior to the date of signature of the Agreement, such Predelivery Payments shall be made upon signature of this Agreement.

UNQUOTE

 

2. [***]

Clause 5.3.5 with the following quoted text is added to the Agreement:

QUOTE

5.3.5

[***]

As used herein:

(i) [***]

(ii) “ Business Day ” shall mean any day which is not a Saturday or a Sunday and which is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in New York, New York, or London, England and

(iii) [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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UNQUOTE

 

3 BACKLOG AIRCRAFT [***]

The Buyer and the Seller agree that within three (3) days of the date of signature of the Agreement, the Buyer will [***] in accordance with the terms and conditions set forth in Paragraph 2 of this Letter Agreement.

 

4 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 4 will be void and of no force or effect.

 

5 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

6 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

Mark D. Powers

Its:   Chief Financial Officer

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA2 - 4 of 4


LETTER AGREEMENT NO. 3

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: [***]

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 3 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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1 DEFINITIONS

Clause 0 to the Agreement is amended to either modify or add the following defined terms between the words “QUOTE” and “UNQUOTE”:

QUOTE

A319 Aircraft – an Airbus A319-100 model aircraft firmly ordered under this Agreement including the A319 Airframe, the A319 Propulsion System, and any part, component, furnishing or equipment installed on the A319 Aircraft on Delivery.

A319 Airframe – any A319 Aircraft, excluding A319 Propulsion System therfor.

A319 Backlog Aircraft - any or all of the A319 Aircraft that have been [***] pursuant to this Agreement together with all components, equipment, parts and accessories installed in or on such aircraft and the A319 Propulsion System installed thereon upon Delivery.

A319 Backlog Airframe – any A319 Backlog Aircraft, excluding A319 Propulsion System therfor.

A319 NEO Aircraft – any or all of the A319 Aircraft that have been [***] pursuant to this Agreement together with all components, equipment, parts and accessories installed in or on such aircraft and the A319 NEO Propulsion System installed thereon upon Delivery.

A319 NEO Propulsion System – as defined in Clause 2.3.6, as set forth in Paragraph 3.2 of this Letter Agreement.

A319 Propulsion System – as defined in Clause 2.3.5, as set forth in Paragraph 3.2 of this Letter Agreement.

A319 Specification – either (a) the A319 Standard Specification if no SCNs are applicable or (b) if SCNs are issued, the A319 Standard Specification as amended by all applicable SCNs.

A319 Standard Specification – the A319 standard specification document number J.000.01000, Issue 7, dated June 20, 2011, which includes a maximum take-off weight (MTOW) of [***] metric tons, a maximum landing weight (MLW) of [***] metric tons and a maximum zero fuel weight (MZFW) of [***] metric tons, a copy of which is annexed as Appendix 1.

A321 Backlog Aircraft – any or all of the remaining thirty (30), of the fifty-two (52) A320-200 model aircraft originally to be sold by the Seller and purchased by the Buyer pursuant to the Original Agreement, as of the date hereof to be sold by the Seller and purchased by the Buyer pursuant to this Agreement as A321-200 model aircraft; and any [***] pursuant to this Agreement, together with all components, equipment, parts and accessories installed in or on such aircraft and the relevant A321 Propulsion System installed thereon.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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A321 NEO Aircraft – any or all of the A321 Aircraft that have been [***] pursuant to this Agreement together with all components, equipment, parts and accessories installed in or on such aircraft and the A321 NEO Propulsion System installed thereon upon Delivery.

A321 NEO Propulsion System – as defined in Clause 2.3.4, as set forth in Paragraph 3.2 of this Letter Agreement.

Aircraft – individually or collectively, the Group 1 A320 Aircraft, the A319 Backlog Aircraft, the A319 NEO Aircraft, the A320 Backlog Aircraft, the A320 NEO Aircraft, the A321 Backlog Aircraft and the A321 NEO Aircraft, as applicable.

Airframe – as applicable, the A319 Airframe, the A320 Airframe or the A321 Airframe.

Backlog Aircraft – the A319 Backlog Aircraft, the A320 Backlog Aircraft and the A321 Backlog Aircraft.

Base Price of the Airframe – the Base Price of the A319 Backlog Airframe, the Base Price of the A319 NEO Airframe, the Base Price of the A320 Backlog Airframe, the Base Price of A320 NEO Airframe, the Base Price of the A321 Backlog Airframe, the Base Price of the A321 NEO Airframe and the Base Price of the Group 1 A320 Airframe.

Base Price of the A319 Airframe – as defined in Paragraph 4 herein.

CFM LEAP X Propulsion System – the CFM LEAP X-1A24 Propulsion System, the CFM LEAP X-1A26 Propulsion Systems and the CFM LEAP X-1A32 Propulsion System, as applicable.

IAE Propulsion System – the IAE V2524-A5 Propulsion System, the IAE V2527-A5 Propulsion System and the IAE V2533-A5 Propulsion System, as applicable.

Irrevocable SCNs – the list of SCNs respectively, set forth in Appendix 2, Exhibit B4 to the Agreement and Appendix 3, which are irrevocably part of the A319 NEO Aircraft specification set forth in Appendix 2, = the A320 NEO Aircraft specification and the A321 NEO Aircraft specification, as applicable.

NEO Aircraft – an A319 NEO Aircraft, an A320 NEO Aircraft and an A321 NEO Aircraft, as applicable.

NEO Propulsion System – the A319 NEO Propulsion System, the A320 NEO Propulsion System and the A321 NEO Propulsion System, as applicable.

Propulsion System – the CFM LEAP X-1A24 Propulsion System, the CFM LEAP X-1A27 Propulsion System, the CFM LEAP X-1A32, the IAE 2524-A5, the IAE 2527-A5, the IAE 2533-A5, the PW1124G Propulsion System, the PW1127G Propulsion System and the PW1133G, as applicable.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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PW Propulsion System – the PW1124G Propulsion System, the PW1127G Propulsion System and the PW1132G Propulsion System, as applicable.

Standard Specification – the A319 Standard Specification, the A320 Standard Specification and the A321 Standard Specification, as applicable.

 

2 [***]

 

2.1 [***]

 

2.2 [***]

 

2.3 Aircraft Specification

 

2.3.1 The A319 Standard Specification, as set forth in Appendix 1 to this Letter Agreement, is hereby incorporated into the Agreement.

 

2.3.2 The A319 Backlog Aircraft SCN List, as set forth in Appendix 2 to this Letter Agreement, is hereby incorporated into the Agreement.

 

2.3.3 The A319 NEO Aircraft SCN List, as set forth in Appendix 3 to this Letter Agreement, is hereby incorporated into the Agreement.

 

2.3.4 The A321 NEO Aircraft SCN List, as set forth in Appendix 4 to this Letter Agreement, is hereby incorporated into the Agreement.

 

2.3.5 Clauses 2.1.2.1 and 2.1.2.2 of the Agreement is deleted in its entirety and replaced with the following Clauses 2.1.2.1 and 2.1.2.2 to read as set forth in the following quoted text:

QUOTE

 

  2.1.2.1 The Seller is currently developing a new engine option (the “ New Engine Option ” or “ NEO ”), applicable to the A319-100, A320-200 and A321-200 model aircraft (the “ A320 Family Aircraft ”). The specification of the A320 Family Aircraft with NEO will be derived from the relevant Standard Specification and will include (i) as applicable, the relevant NEO Propulsion System (ii) Sharklets, (iii) airframe structural adaptations and (iv) Aircraft systems and software adaptations required to operate such A320 Family Aircraft with the New Engine Option. The foregoing is currently reflected in the Irrevocable SCNs listed in Exhibit B4 to the Agreement, Appendix 3 and Appendix 4 to this Letter Agreement, the implementation of which is hereby irrevocably accepted by the Buyer.

 

  2.1.2.2 The New Engine Option shall modify the design weights of the

 

  (i) A319 Standard Specification as follows: MTOW of [***] metric tons, MLW of [***] metric tons and MZFW of [***] metric tons,

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  (ii) A320 Standard Specification as follows: MTOW of [***] metric tons, MLW of [***] metric tons and MZFW of [***] metric tons, and

 

  (iii) the A321 Standard Specification as follows: MTOW of [***] metric tons, MLW of [***] metric tons and MZFW of [***] metric tons.

It is agreed and understood that the above design weights may be updated upon final NEO specification freeze.

UNQUOTE

 

3. PROPULSION SYSTEMS

 

3.1 Clause 2.3.4 of the Agreement is renumbered to Clause 2.3.7.

 

3.2 New Clauses 2.3.4, 2.3.5 and 2.3.6 are inserted into the Agreement as set forth in the following quoted text:

QUOTE

 

2.3.4 The A321 NEO Airframe will be equipped with either a set of two (2) (i) CFM LEAP X-1A32 engines or (ii) PW1133G engines, each with an AET of 32,100 lbf (each, the “ A321 NEO Propulsion System ”),

 

2.3.5 The A319 Backlog Airframe will be equipped with a set of two (2) IAE V2524-A5 engines (the “ A319 Propulsion System ”),

 

2.3.6 The A319 NEO Airframe will be equipped with either a set of two (2) (i) CFM LEAP X-1A24 engines or (ii) PW1124G engines, each with an AET of 23,500 lbf (each, the “ A319 NEO Propulsion System ”),

UNQUOTE

 

4. AIRFRAME BASE PRICES

 

4.1 New Clauses 3.1.9, 3.1.10, 3.1.11, 3.1.12, 3.1.13 and 3.1.14 are added to the Agreement to read as follows in the quoted text:

QUOTE

 

3.1.7 Base Price of the A319 Backlog Airframe

The “ Base Price of the A319 Backlog Airframe ” is the sum of the following base prices:

 

  (i) the base price of the A319 Backlog Airframe as defined in the A319 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is:

USD $[***]

(US Dollars – [***]) and

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  (ii) the sum of the base prices of all SCNs set forth in Appendix 2 to this Letter Agreement, which is:

USD $[***]

(US Dollars – [***])

 

3.1.8 The Base Price of the A319 Backlog Airframe has been established in accordance with the average economic conditions prevailing in the A320 Family Base Period.

 

3.1.9 The “ Base Price of the A319 NEO Airframe” is the sum of the following base prices :

 

  (i) the base price of the A319 NEO Airframe as defined in the A319 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers which is :

USD $[***]

(US Dollars – [***])

 

  (ii) the sum of the base prices of the Irrevocable SCNs set forth in Appendix 3 to this Letter Agreement, which is the sum of:

 

  a) the base price of the New Engine Option is:

USD $[***]

(US Dollars – [***]) and

 

  b) the base price of the Sharklets is

USD $[***]

(US Dollars – [***]),

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  (iii) the sum of the base prices of any and all additional SCNs (other than Irrevocable SCNs to the extent included in Clause 3.1.9(ii)) set forth in Appendix 3 to this Letter Agreement is:

USD $[***]

(US Dollars – [***]), and

 

  (iv) the base price of the Master Charge Engine, which is applicable if a CFM LEAP-X Propulsion System is selected, which is:

USD $[***]

(US Dollars – [***])

 

3.1.10 The A319 NEO Airframe Base Price has been established in accordance with the average economic conditions prevailing in the A320 Family Base Period.

 

3.1.11 The “ Base Price of the A321 NEO Airframe” is the sum of the following base prices :

 

  (i) the base price of the A321 NEO Airframe as defined in the A321 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers which is :

USD $[***]

(US Dollars – [***]),

 

  (ii) the sum of the base prices of the Irrevocable SCNs set forth in Appendix 4 to this Letter Agreement, which is the sum of:

 

  a) the base price of the New Engine Option is:

USD $[***]

(US Dollars – [***]) and

 

  b) the base price of the Sharklets is

USD $[***]

(US Dollars – [***]),

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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  (iii) the sum of the base prices of any and all additional SCNs (other than Irrevocable SCNs to the extent included in Clause 3.1.11(ii)) set forth in Appendix 4 to this Letter Agreement is:

USD $[***]

(US Dollars – [***]), and

 

  (iv) the base price of the Master Charge Engine, which is applicable if a CFM LEAP-X Propulsion System is selected, which is:

USD $[***]

(US Dollars – [***])

 

3.1.12 The A321 NEO Airframe Base Price has been established in accordance with the average economic conditions prevailing in the A320 Family Base Period.

UNQUOTE

 

4.2 New Clauses 3.2.5, 3.2.6 and 3.2.7 are added to the Agreement to read as follows in the quoted text:

QUOTE

 

3.2.5 the base price of a set of two (2) IAE V2524-A5 engines (the “ IAE V2524-A5 Propulsion System ” is

USD $[***]

(US Dollars – [***])

The Base Price of the IAE Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the applicable IAE Propulsion System Reference Price, as set forth in Part 3 of Exhibit C.

 

3.2.6   (i)      the base price of a set of two (2) CFM LEAP X-1A24 engines (the “ CFM LEAP X-1A24 Propulsion System ” is
       USD $[***]
       (US Dollars – [***])

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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The Base Price of the CFM LEAP X-1A24 Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the applicable CFM Propulsion System Reference Price, as set forth in Part 2 of Exhibit C.

Notwithstanding the foregoing, the CFM Propulsion System Reference Price corresponds to the thrust ratings defined for the respective Propulsion System in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

 

  (ii) the base price of a set of two (2) CFM LEAP X-1A32 engines (the “ CFM LEAP X-1A32 Propulsion System ”) is

USD $[***]

(US Dollars – [***])

The Base Price of the CFM LEAP X-1A32 Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the applicable CFM Propulsion System Reference Price, as set forth in Part 2 of Exhibit C.

Notwithstanding the foregoing, the CFM Propulsion System Reference Price corresponds to the thrust ratings defined for the respective Propulsion System in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

 

3.2.7   (i)     

the base price of a set of two (2) PW1124G engines (the “ PW1124G Propulsion System ” is

      

USD $[***]

      

(US Dollars – [***])

      

The Base Price of the PW1124G Propulsion System has been established in accordance with the delivery conditions prevailing in [***] and has been calculated from the applicable PW Propulsion System Reference Price, as set forth in Part 4 of Exhibit C.

      

Notwithstanding the foregoing, the PW Propulsion System Reference Price corresponds to the thrust ratings defined for the respective Propulsion System in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

  (ii)     

the base price of a set of two (2) PW1133 engines (the “ PW1133 Propulsion System ”) is

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

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USD $[***]

(US Dollars – [***])

The Base Price of the PW Propulsion System has been established in accordance with the delivery conditions prevailing in January 2010 and has been calculated from the applicable PW Propulsion System Reference Price, as set forth in Part 4 of Exhibit C.

Notwithstanding the foregoing, the PW Propulsion System Reference Price corresponds to the thrust ratings defined for the respective Propulsion System in Clause 2.3 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze.

UNQUOTE

 

5. OTHER COMMERCIAL TERMS

 

5.1 The Predelivery Payments for Backlog Aircraft, is as set forth in Clause 5.3 of the Agreement as modified by Paragraphs 1.1 and 2 of Letter Agreement No. 2 to the Agreement.

 

5.2 The Predelivery Payments for NEO Aircraft is as set forth in Clause 5.3 of the Agreement as modified by Paragraphs 1.2 and 2 of Letter Agreement No. 2 to the Agreement.

 

5.2 The purchase incentives applicable to the A319 Backlog Aircraft are set forth in Paragraphs 1.1 through 1.3 of Letter Agreement No. 1 to the Agreement.

 

5.3 The purchase incentives applicable to the A319 NEO Aircraft are set forth in Paragraphs 4.1 through 4.3 Letter Agreement No. 1 to the Agreement.

 

5.4 The purchase incentives applicable to the A321 NEO Aircraft are set forth in Paragraphs 6.1 through 6.3 of Letter Agreement No 1 to the Agreement.

 

5.5 The [***] applicable to the A319 Backlog Aircraft, the A319 NEO Aircraft and the A321 NEO Aircraft is set forth in Paragraph 8 of Letter Agreement No. 1 to the Agreement.

 

6. NEO AIRCRAFT AND [***]

 

6.1 Notwithstanding the Delivery Schedule set forth in Clause 9.1 of the Agreement, the [***].

 

6.2 If the Seller exercises its right pursuant to Paragraph 6.1 above, [***].

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA3 - 10 of 11


6.3 Between [***] and [***], the Seller [***].

 

6.4 Predelivery Payments received for any NEO Aircraft [***] pursuant to Paragraphs 6.1 or 6.3 above, [***].

 

7. [***]

 

8 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 8 will be void and of no force or effect.

 

9 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

10 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

Mark D. Powers

Its:   Chief Financial Officer

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA3 - 11 of 11


Appendix 1 to Letter Agreement No. 3

A319 STANDARD SPECIFICATION

Document number J.000.01000 Issue 7 dated June 20, 2011

The A319 Standard Specification document number J.000.01000 Issue 7 dated June 20, 2011 is contained in a separate folder.

 

   CONFIDENTIAL AND PROPRIETARY    LA3 App1- 1 of 1


Appendix 2 to Letter Agreement No. 3

JETBLUE A319 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A319-100 issue 7.0 dated 20th June 2011

A319 Backlog Aircraft

 

    

ATA

  

TITLE

  

A319-100 SCNs
[***]

per aircraft

  

Estimated BFE Budget

[***]

per aircraft

  

Comments

   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    [***]
   [***]    [***]    [***]    =    [***]
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    [***]    =
   [***]    [***]    [***]    [***]    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    [***]    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =

N

   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    [***]    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =
   [***]    [***]    [***]    =    =

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY    LA3 App2


Appendix 2 to Letter Agreement No. 3

JETBLUE A319 CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A319-100 issue 7.0 dated 20th June 2011

A319 Backlog Aircraft

 

    

ATA

  

TITLE

  

A319-100 SCNs
[***]

per aircraft

  

Estimated BFE Budget
[***]

per aircraft

  

Comments

   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    [***]    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    =
   [***]   

[***]

   [***]    =    [***]
   [***]   

[***]

   [***]    =    [***]
   57-00   

Installation of sharklets

   [***]       Subject to industrial and certification contraints
   72-00   

A319-100 engine selection - V2524-A5 at 23,500 lbf (**)

   [***]      
     

TOTAL OF SCNS AND ESTIMATED BFE BUDGET - [***] PER AIRCRAFT

   [***]    [***]   

[***]

 

(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY    LA3 App2


Appendix 3 to Letter Agreement No. 3

JETBLUE A319NEO CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A319-100 issue 7.0 dated 20th June 2011

A319 NEO Aircraft

LIST OF IRREVOCABLE SCNS ASSOCIATED WITH THE NEO OPTIONS

NB: These options shall be irrevocably part of the A319 NEO specification

 

     A319-100 NEO

ATA

  

TITLE

   SCN Budget
$[***]
per aircraft
[***]   

[***]

   [***]
57-00   

Installation of sharklets

   [***]
72-00   

A319-100 NEO engine selection : CFMI LEAP-X1A24 at 23,500 lbf (**) or PW PW1124G at 23,500 lbf (**)

   [***]
    

TOTAL OF IRREVOCABLE SCNS [***] PER AIRCRAFT

   [***]

LIST OF ADDITIONAL SCNS

NB: Certain options from this list and currently available Airbus catalogues may not be applicable and/or certified for Aircraft equipped with New Engine Option in 2016 and 2017.

 

    

A320-200 NEO

         

ATA

  

TITLE

  

SCN Budget

[***]

per aircraft

  

Estimated BFE Budget

[***]

per aircraft

  

Comments

[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY    LA 3 App 3


[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    [***]
  

TOTAL OF ADDITIONAL SCNS AND ESTIMATED BFE BUDGET - [***] PER AIRCRAFT

   [***]    [***]   
  

GRAND TOTAL SCN AND BFE BUDGET FOR A319-100 EQUIPPED WITH NEO – [***] PER AIRCRAFT

   [***]    [***]   

[***]

 

(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIENTIAL AND PROPRIETARY    LA 3 App 3


3

Appendix 4 to Letter Agreement No. 3

JETBLUE A321 NEO CUSTOMIZATION BUDGET PROPOSAL

Based on Standard Specification A321-200 issue 5.0 dated 20 June 2011

A321 NEO Aircraft

LIST OF IRREVOCABLE SCNS ASSOCIATED WITH THE NEO OPTIONS

NB: These options shall be irrevocably part of the A321 NEO specification

 

       A321-200
NEO

ATA

  

TITLE

   SCN Budget
$[***]
per aircraft
[***]   

[***]

   [***]
[***]   

[***]

   [***]
72-00   

A321-200 NEO engine selection : CFMI LEAP-X1A32 at 32,100 lbf (**) or PW PW1133G at 32,100 lbf (**)

   [***]
  

TOTAL OF IRREVOCABLE SCNS - [***] PER AIRCRAFT

   [***]

LIST OF ADDITIONAL SCNS

NB: Certain options from this list and currently available Airbus catalogues may not be applicable and/or certified for Aircraft equipped with New Engine Option in 2016 and 2017.

 

      

A321-200 NEO

         

ATA

  

TITLE

  

SCN Budget

[***]

per aircraft

  

Estimated BFE Budget
[***]

per aircraft

  

Comments

[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    [***]
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY    LA3 App4


3

 

[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    [***]    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    =
[***]    [***]    [***]    =    [***]
[***]    [***]    [***]    =    [***]
  

TOTAL OF ADDITIONAL SCNS AND ESTIMATED BFE BUDGET - [***] PER AIRCRAFT

   [***]    [***]   
  

GRAND TOTAL SCN AND BFE BUDGET FOR A321-200 EQUIPPED WITH NEO - [***] PER AIRCRAFT

   [***]    [***]   

[***]

 

(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance).

It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer.

[***]

Additional options for considerations

 

         

A321-200 NEO

ATA

  

TITLE

  

SCN Budget

[***]

per aircraft

[***]    [***]    [***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

  CONFIDENTIAL AND PROPRIETARY    LA3 App4


LETTER AGREEMENT NO. 4

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: SPECIFICATION MATTERS

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 4 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA4 - 1 of 2


1 [***]

 

2 [***]

 

3 [***]

 

4 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 4 will be void and of no force or effect.

 

5 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

6 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

Mark D. Powers

Its:   Chief Financial Officer

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA4 - 2 of 2


LETTER AGREEMENT NO. 5A

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

 

Re: A320 AIRCRAFT PERFORMANCE GUARANTEE – (IAE A320 V2527-A5 ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS. (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A320 Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5A (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A320 Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5A - 1 of 3


For the purposes of this Letter Agreement No. 5A, the term “Aircraft” will mean “A320 Backlog Aircraft” (excluding “Group 1 A320 Aircraft”).

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2, 3 and 4 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A320 Standard Specification D 000 02000 Issue 8 dated 20 th  June 2011 as amended by SCNs for:

 

  i) installation of Sharklets

 

  ii) installation of International Aero Engines V2527-A5 SelectOne engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)

     [***] kg ([***] lb)   

Maximum Landing Weight (MLW)

     [***] kg ([***] lb)   

Maximum Zero Fuel Weight (MZFW)

     [***] kg ([***]lb)   

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 [***]

 

9 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5A - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5A - 3 of 3


LETTER AGREEMENT NO. 5B

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

 

Re: A321 AIRCRAFT PERFORMANCE GUARANTEE – (IAE A321 V2533-A5 ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS. (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith(as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A321 Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5B (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A321 Backlog Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5B - 1 of 3


For the purposes of this Letter Agreement No. 5B, the term “Aircraft” will mean “A321 Backlog Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2, 3 and 4 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A321 Standard Specification E 000 02000 Issue 5 dated 20 th  June 2011 as amended by SCNs for:

 

  i) installation of Sharklets

 

  ii) installation of International Aero Engines V2533-A5 SelectOne engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)    [***] kg ([***] lb)
Maximum Landing Weight (MLW)    [***] kg ([***] lb)
Maximum Zero Fuel Weight (MZFW)    [***] kg ([***] lb)

 

  iv) [***]

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 [***]

 

9 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5B - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5B - 3 of 3


LETTER AGREEMENT NO. 5C

As of October 19, 2011

JetBlue Airways

118-29 Queens Blvd

Forest Hills, New-York 11375

Re: A320 NEO AIRCRAFT PERFORMANCE GUARANTEE – NEO (CFM A320 LEAP-X ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things the sale by the Seller and the purchase by the Buyer of certain A320 Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5C (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A320 Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5C - 1 of 3


For the purposes of this Letter Agreement No. 5C, the term “Aircraft” will mean “A320 NEO Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2 and 3 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A320 Standard Specification D 000 02000 Issue 8 dated 20 th  June 2011 as amended by SCNs for:

 

  i) NEO aircraft configuration

 

  ii) installation of CFM International LEAP-X1A26 engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)

   [***] kg ([***] lb)

Maximum Landing Weight (MLW)

   [***] kg ([***] lb)

Maximum Zero Fuel Weight (MZFW)

   [***] kg ([***] lb)

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5C - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5C - 3 of 3


LETTER AGREEMENT NO. 5D

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

 

Re: A320 NEO AIRCRAFT PERFORMANCE GUARANTEE – NEO (PW A320 PW1127G ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A320 Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5D (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A320 Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5D - 1 of 3


For the purposes of this Letter Agreement No. 5D, the term “Aircraft” will mean “A320 NEO Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2 and 3 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A320 Standard Specification D 000 02000 Issue 8 dated 20 th  June 2011 as amended by SCNs for:

 

  i) NEO aircraft configuration

 

  ii) installation of Pratt and Whitney PW1127G engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)      [***]   

Maximum Landing Weight (MLW)

     [***]   

Maximum Zero Fuel Weight (MZFW)

     [***]   

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5D - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

 

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

 

Title:  

Chief Financial Officer

 

LA5D - 3 of 3


LETTER AGREEMENT NO. 5E

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

Re: A321 NEO AIRCRAFT PERFORMANCE GUARANTEE – NEO (CFM A321 LEAP-X ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS. (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A321 NEO Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5E (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A321 NEO Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5E - 1 of 3


For the purposes of this Letter Agreement No. 5E, the term “Aircraft” will mean “A321 NEO Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2 and 3 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A321 Standard Specification E 000 02000 Issue 5 dated 20 th  June 2011 as amended by SCNs for:

 

  i) NEO aircraft configuration

 

  ii) installation of CFM International LEAP-X1A32 engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)

   [***] kg ([***])

Maximum Landing Weight (MLW)

   [***] kg ([***])

Maximum Zero Fuel Weight (MZFW)

   [***] kg ([***])

 

  iv) [***]

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5E - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5E - 3 of 3


LETTER AGREEMENT NO. 5F

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

 

Re: A321 NEO AIRCRAFT PERFORMANCE GUARANTEE – NEO (PW A321 PW1133G ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS. (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A321 NEO Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5F (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A321 Aircraft NEO. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5F - 1 of 3


For the purposes of this Letter Agreement No. 5F, the term “Aircraft” will mean “A321 NEO Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2 and 3 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A321 Standard Specification E 000 02000 Issue 5 dated 20 th  June 2011 as amended by SCNs for:

 

  i) NEO aircraft configuration

 

  ii) installation of Pratt and Whitney PW1133G engines

 

  iii) the following design weights:

 

Maximum Take-Off Weight (MTOW)

     [***] kg ([***])   

Maximum Landing Weight (MLW)

     [***] kg ([***])   

Maximum Zero Fuel Weight (MZFW)

     [***] kg ([***])   

 

  iv) [***]

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5F - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5F - 3 of 3


LETTER AGREEMENT NO. 5G

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New-York 11375

 

Re: A320 AIRCRAFT PERFORMANCE GUARANTEE – (IAE A320 V2527-A5 ENGINES)

Dear Ladies and Gentlemen,

JETBLUE AIRWAYS. (the “ Buyer ”) and AIRBUS S.A.S. (the “ Seller ”) have entered into an Airbus A320 Family Purchase Agreement of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time, (the “ Agreement ”) which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain A320 Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5G (the “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the A320 Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement constitutes an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement is governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA5G - 1 of 3


For the purposes of this Letter Agreement No. 5G, the term “Aircraft” will mean “Group 1 A320 Aircraft”.

 

1 AIRCRAFT CONFIGURATION

The guarantees defined in Paragraphs 2, 3 and 4 below (the “ Guarantees ”) are applicable to the Aircraft as described in the A320 Standard Specification D 000 02000 Issue 6 dated 31 st  January 2005 as amended by SCNs for:

 

  i) installation of International Aero Engines V2527-A5 SelectOne engines

 

  ii) the following design weights:

 

Maximum Take-Off Weight (MTOW)

     [***] kg ([***])   

Maximum Landing Weight (MLW)

     [***] kg ([***])   

Maximum Zero Fuel Weight (MZFW)

     [***] kg ([***])   

hereinafter referred to as the “ Specification ” without taking into account any further changes thereto as provided in the Agreement.

 

2 [***]

 

3 [***]

 

4 [***]

 

5 [***]

 

6 [***]

 

7 [***]

 

8 [***]

 

9 UNDERTAKING REMEDIES

Should the Aircraft fail to meet any of the Guarantees specified in this Letter Agreement the Seller will use its reasonable endeavours to correct the deficiency to comply with the subject guarantee.

[***]

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA5G - 2 of 3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Title:  

Senior Vice President Contracts

 

JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Title:  

Chief Financial Officer

 

LA5G - 3 of 3


LETTER AGREEMENT NO. 6

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: SUPPORT MATTERS

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 6 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA6 - 1 of 4


1 WARRANTY PERIOD

Clause 12.1.3 of the Agreement is deleted in its entirety and replaced with the following language between QUOTE and UNQUOTE:

QUOTE

 

  12.1.3 The warranties set forth in Clauses 12.1.1 and 12.1.2 will be limited to those defects that [***] (the “Warranty Period”).

UNQUOTE

 

2 REVISION SERVICE

 

2.1 For Backlog Aircraft, Clause 14.5 of the Agreement is deleted in its entirety and replaced by Clause 14.5 below between QUOTE and UNQUOTE:

QUOTE

 

  14.5 Revision Service

For each Backlog Aircraft firmly ordered under this Agreement, revision service for the Technical Data will be provided [***] (the “ Revision Service Period ”).

Thereafter revision service will be provided in accordance with the terms and conditions set forth in the Seller’s then current Customer Services Catalog.

UNQUOTE

 

2.2 For NEO Aircraft, Clause 14.5 of the Agreement is deleted in its entirety and replaced by Clause 14.5 below between QUOTE and UNQUOTE:

QUOTE

 

  14.5 Revision Service

For each NEO Aircraft firmly ordered under this Agreement, revision service for the Technical Data will be provided [***] (also a “ Revision Service Period ”).

Thereafter revision service will be provided in accordance with the terms and conditions set forth in the Seller’s then current Customer Services Catalog.

UNQUOTE

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA6 - 2 of 4


3 [***]

 

4 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 4 will be void and of no force or effect.

 

5 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

6 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA6 - 3 of 4


If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Its:   Chief Financial Officer

 

LA6 - 4 of 4


LETTER AGREEMENT NO. 7

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: MISCELLANEOUS

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 7 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA7 - 1 of 4


1 DELIVERY LOCATION

The definition of Delivery Location set forth in Clause 0 of the Agreement is deleted in its entirety and replaced by the following definition between QUOTE and UNQUOTE:

QUOTE

Delivery Location - the facilities of the Seller at the location of final assembly of the Aircraft, [***]

UNQUOTE

 

2 PERFORMANCE GUARANTEES

After signature of an SCN for [***] pursuant to the terms set forth in Paragraph 2 of Letter Agreement No. 4 to the Agreement, the Seller will provide to the Buyer [***] days prior to the Scheduled Delivery Month, a performance guarantee, [***].

 

3 INEXCUSABLE DELAY

Clause 11.1 of the Agreement is deleted in its entirety and replaced with the Clause 11.1 set forth below between QUOTE and UNQUOTE:

QUOTE

 

  11.1 Liquidated Damages

Should an Aircraft not be Ready for Delivery within (i) [***] after the last day of the Scheduled Delivery Month for any Backlog Aircraft, or (ii) [***] after the last day of the Scheduled Delivery Month for any NEO Aircraft (in each case as such month may be changed pursuant to Clauses 2.2, 7 and/or 10) (the “ Delivery Period ”) and such delay is not as a result of an Excusable Delay or Total Loss, then such delay will be termed an “ Inexcusable Delay .”

[***] the Buyer will have the right to claim, and the Seller will pay the Buyer liquidated damages of (i) US $[***] (US Dollars – $[***]), for each day of delay in the Delivery starting on the date that is the day after the last day of the Delivery Period.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA7 - 2 of 4


In no event will the amount of liquidated damages [***] exceed the total of US $[***] (US dollars – [***]) in respect of any one Aircraft.

[***] the Buyer will have the right to claim, and the Seller will pay the Buyer liquidated damages of (i) US $[***] (US Dollars – [***]), for each day of delay in the Delivery starting on the date that is the day after the last day of the Delivery Period.

In no event will the amount of liquidated damages [***] exceed the total of US $[***] (US dollars – [***]) in respect of any one Aircraft.

The amounts set forth in this Sub-clause 11.1 will [***], as may be amended by the provisions of this Agreement.

The Buyer’s right to liquidated damages in respect of an Aircraft is conditioned on the Buyer’s submitting a written claim for liquidated damages to the Seller not later than [***] after the last day of the relevant Delivery Period.

UNQUOTE

 

4 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 4 will be void and of no force or effect.

 

5 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement.

 

6 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA7 - 3 of 4


If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Its:   Chief Financial Officer

 

LA7 - 4 of 4


LETTER AGREEMENT NO. 8

As of October 19, 2011

JetBlue Airways Corporation

118-29 Queens Boulevard

Forest Hills, New York 11375

Re: SPECIAL RIGHTS UNDER THE AGREEMENT

Dear Ladies and Gentlemen,

JetBlue Airways Corporation (the “ Buyer ”) and Airbus S.A.S. (the “ Seller ”) have entered into an A320 Family Aircraft Purchase Agreement dated as of even date herewith (as supplemented and amended by the other letter agreements, and as otherwise supplemented, amended or modified from time to time (the “ Agreement ”), which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 8 (this “ Letter Agreement ”) certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms “herein,” “hereof” and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

 

LA8 - 1 of 4


1 SPECIAL PROVISION RELATED TO BUYER’ S EXISTING FLEET OF A320-200 AIRCRAFT

The Seller will offer [***] to the Buyer a certified winglet retrofit modification for its fleet of IAE powered in-service eligible A320-200 aircraft, [***] (the “ Winglet Retrofit ”). If the Seller [***], then the Buyer shall be entitled to terminate the Agreement [***] by written notice to the Seller (the “Termination Notice”).

Upon Seller’s receipt of the Termination Notice, the Buyer and Seller agree that, (a) the Agreement, the related Memorandum of Understanding and Amendment No. 38 to the Original Agreement will then automatically, immediately and concurrently be null and void, (b) the Seller [***], (c) the Original Agreement including all Amendments thereto through and including Amendment 37, but excluding Amendment 38, will remain valid and in full force and effect, and all other terms and conditions applicable to the Backlog Aircraft shall, passim , be deemed to have remained in effect as set forth in the Original Agreement including all Amendments thereto through Amendment 37 prior to signature of the Agreement and (d) for each Backlog Aircraft then delivered under the Agreement, the Buyer [***]. The Termination Notice shall be deemed effective and in full force upon the Seller’s receipt of the Termination Notice as set forth above and [***].

 

2 ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement or of the Agreement, this Letter Agreement and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph 2 will be void and of no force or effect.

 

3 CONFIDENTIALITY

This Letter Agreement is subject to the terms and conditions of Clause 22.10 of the Agreement and this Clause 3 shall survive termination of the Agreement.

 

 

[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

 

LA8 - 2 of 4


4 COUNTERPARTS

This Letter Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

LA8 - 3 of 4


If the foregoing correctly sets forth your understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller.

 

Very truly yours,
AIRBUS S.A.S.
By:  

/s/ Christophe Mourey

Its:   Senior Vice President Contracts

 

Accepted and Agreed
JETBLUE AIRWAYS CORPORATION
By:  

/s/ Mark D. Powers

Its:   Chief Financial Officer

 

LA8 - 4 of 4

Exhibit 10.34

AGREEMENT AND GENERAL RELEASE

This Agreement and General Release (hereinafter, the “Agreement”) offered to Ed Barnes (the “Executive”) by JetBlue Airways Corporation (the “Company”) is dated as of November 23, 2011.

WHEREAS, the Executive desires to resign his position with the Company as Executive Vice President and Chief Financial Officer on October 18, 2011 (the “Position Resignation Date”);

WHEREAS, notwithstanding the Position Resignation Date, the Executive shall remain an employee of the Company on a non-working notice through November 23, 2011 (“Separation Date”);

NOW THEREFORE, in consideration of the mutual covenants and conditions set forth below, and intending to be legally bound thereby, the Company and the Executive covenant and agree as follows:

1. Resignation . The Executive agrees to resign his position as Executive Vice President and Chief Financial Officer of the Company by executing the resignation letter attached as Appendix A to this Agreement as of the Position Resignation Date. From the Position Resignation Date through the Separation Date, the Executive shall be relieved of all job duties and responsibilities but shall remain available to answer questions and otherwise cooperate in order to assist in a smooth transition. Notwithstanding the foregoing, the Company shall continue to pay the Executive his regular salary, payable at the time of JetBlue’s regular paydays and in the amount of Employee’s regular pay for a normal payroll period, less all customary federal, state and local withholdings until the Separation Date.

2. Payment and Benefits . In consideration for the Executive’s obligations herein, the Company shall provide the following payments and benefits:

a. Payment . Within 10 business days of the Effective Date, the Company shall pay the Executive a lump sum payment of four hundred thousand dollars and no cents ($400,000.00), less applicable withholdings, in the form of salary and also within 10 business days of the Effective Date, the Company shall pay the Executive and additional lump sum of six hundred thousand dollars and no cents ($600,00.00), less all applicable withholdings, representing bonus and other consideration paid (together the “Separation Payment”).

b. The Company agrees to provide the Executive and his eligible dependents lifetime positive space flight benefits, at least equivalent to those of similarly situated executive officers, subject to the terms of JetBlue’s pass travel programs and any future changes to those programs including, but not limited to any changes as may be required by Section 409A of the Internal Revenue Code.

 

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c. If the Executive is eligible for and elects continued health insurance coverage under COBRA, the Company will pay the full cost of such premiums for the Executive and any of his eligible dependents as long as the Executive and/or his eligible dependents continue to be eligible for and maintain COBRA coverage, up to a maximum of twelve (12) months from the Separation Date.

3. No Other Payments or Benefits . Except for the payments and benefits provided for in Paragraph 2 of this Agreement (which the Executive acknowledges that he is only eligible to receive if he signs, returns and does not revoke this Agreement), and those accrued but unused benefits and obligations to which the Executive is entitled as set forth in Paragraph 1 of this Agreement, the Executive hereby acknowledges and agrees that the Executive is not entitled to any other compensation or benefits of any kind from the Company, including, but not limited to, any claims for salary, bonuses, severance, or any other payments or benefits whatsoever under any Company plan or program. The Executive’s equity grants (including stocks or options to purchase stock) shall be governed by the terms of the applicable plans as may be amended from time to time.

4. Release .

(a) In consideration of the obligations of the Company herein, specifically the payments and benefits described in Paragraph 2 of this Agreement, of which the Executive acknowledges that the Executive is not otherwise entitled, the Executive (on behalf of himself and his heirs, administrators, executors, administrators and assigns) hereby fully and forever unconditionally releases and discharges the Company and all of its past or present subsidiaries, affiliates, predecessors, successors and assigns, and, with respect to each and all of the foregoing entities (including the Company), all of their respective present and former officers, directors, employees, insurers, agents (hereinafter referred to collectively as the “Releasees”), individually and in their official capacities, from any and all manner of actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, charges, claims and demands whatsoever which the Executive, the Executive’s heirs, executors, administrators and assigns has, or may hereafter have against the Releasees arising out of or by reason of any cause, matter or thing whatsoever occurring on or before the Effective Date of this Agreement, whether known or unknown, suspected or claimed, specifically mentioned herein or not, including, but without limitation to, any or all matters relating to the Executive’s employment by the Company and the separation thereof, the Executive’s benefits, and all matters arising under any international, federal, state, or local statute, rule or regulation or principle of contract law or common law, in law or in equity, including, but nit limited to, claims arising under Title VII of the Civil rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Employee Retirement Income Security Act of 1974, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, all as amended, and any other federal, state or local laws regarding employment discrimination, excepting only claims for worker’s compensation, unemployment compensation and rights under the Consolidated Omnibus Budget Reconciliation

 

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Act (“COBRA”) and any other rights or claims that cannot be released by a private settlement agreement. The Executive does not waive or release any rights arising after the Effective Date of this Agreement, any and all rights existing by virtue of Executive’s ownership of stock in the Company, and those rights provided in connection with his equity grants pursuant to Paragraph 3 herein.

(b) The Executive agrees that, although he may hereafter discover claims or rights presently unknown or unsuspected, or new or additional facts from those which the Executive now knows or believes to be true, the Executive intends to provide a complete waiver of all claims and rights based on any facts and circumstances, whether known or unknown, up to and including the Effective Date (except as expressly excluded above in Paragraph 4(a).

5. Restrictive Covenants

(a) Non-Competition . Executive agrees that, during the Restricted Period (as defined below), he shall not, without the prior written consent of the Company’s Chief Executive Officer, engage in Competitive Activity, which shall be defined as directly or indirectly owning, managing, operating, joining, controlling or participating in the ownership, management, operation or control of, be employed by, or provide consulting or other services to any air carrier with its base of operations in North, Central or South America (the “Competitive Airlines”). For purposes of this Agreement, “Restricted Period” means a period of twelve (12) months immediately following the Separation Date.

(b) Non-Solicitation . Executive agrees that, during the Restricted Period, he shall not, directly or indirectly, either as principal, manager, agent, employee, consultant, officer, director, stockholder, partner, investor or lender or in any other capacity, and whether personally or through other persons: (i) solicit, induce, hire or attempt to solicit, induce or hire, on behalf of himself or any other person or entity, any employee, consultant or independent contractor of the Company who had such relationship with the Company at the time of solicitation (or within 12 months prior to such solicitation) to terminate their employment or relationship with the Company and/or accept employment or any other relationship elsewhere; or (ii) solicit, induce or attempt to solicit or induce any customer, supplier, licensee or other business relation of the Company (or any person or entity who was a customer, supplier, licensee or other business relation of the Company within the preceding 12 months) to cease or curtail their business relationship with the Company. Nothing in this paragraph shall preclude Executive from using the services of a third-party provider used by the Company.

(c) Remedies . Executive acknowledges that, in view of the nature of the Company’s business and his prior position with the Company, the restrictions contained in Paragraphs 5(a) and 5(b) of this Agreement are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of those provisions would result in irreparable injury to the Company. In the event of a breach, the Company shall be entitled to all available legal and equitable remedies of law, including, but not limited to a temporary restraining order and injunctive relief restraining the Executive from the commission of any breach (without proving actual damages or posting a bond or other security).

 

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(d) Reformation . The courts shall be entitled to modify the duration and scope of any restriction contained in Paragraph 5 of this Agreement to the extent such restriction would otherwise be unenforceable, and such restriction as modified shall be enforceable. Executive acknowledges that the restrictions imposed by Paragraph 5 of this Agreement are legitimate, reasonable and necessary to protect the Company’s investment in its businesses and the goodwill thereof. Executive acknowledges that the scope and duration of the restrictions contained herein are fair, necessary and reasonable in light of the time that Executive was engaged in the business of the Company, Executive’s reputation in the markets for the Company’s business, and Executive’s relationship with the suppliers, customers, clients and employees of the Company.

6. Company Property . The Executive shall return all Company property as of the Separation Date. The Company agrees to issue the Executive a new blackberry device and the Executive can transfer his current cell phone number (646 709 0812) to his own personal cell phone (provided that the Company is not obligated to pay for such services). After giving effect to the return of the property, the Executive represents and warrants that the Executive has no Company records or copies of records or correspondence or copies of correspondence, other than non-confidential documents relating to the Executive’s own employment by the Company.

7. Agreement to Cooperate . The Company anticipates that, from time to time, the Company may have questions regarding matters that have been within the scope of Executive’s responsibilities. Further, the Executive may be required to provide further documentation, testimony in the form of deposition and/or appearance at trial or other related court appearances. Executive agrees to cooperate with Company in these matters as may be needed by the Company; provided, however, that if Executive provides any such assistance, the Company shall pay for his reasonable out-of-pocket expenses (including attorney’s fees if it shall be necessary for him to retain individual counsel) incurred in connection with such assistance.

8. Non-Disparagement . The Executive agrees that the Executive will not publish or communicate to any person or entity Disparaging (as defined herein) remarks, comments or statements concerning the Releases. The Company’s current executive officers shall not publish or communicate to any person or entity any Disparaging remarks comments or statements concerning the Executive. “Disparaging” remarks, comments, or statements are those that impugn the character, honesty, integrity, morality, or business acumen or abilities in connection with any aspect of the operation of the Company’s business or the Executive. The obligations set forth in this provision shall expire twelve (12) months from the Separation Date; provided, however, the Company’s current executive officers shall only be bound to the terms of this provision during their employment with the Company.

9. Protection of Confidential Information . The Executive hereby acknowledges that Executive remains subject to and agrees to abide by any and all existing duties and obligations respecting confidential and/or proprietary information of the Company as set forth in any applicable Company policy and as pursuant to applicable law.

 

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10. Non-Assignment of Rights . Executive warrants that the Executive has not assigned or transferred any right or claim described in the general release given in Paragraph 4(a) above. If the Executive commences or participates in any action or proceeding (including as a member of a class of persons) regarding any claims covered by the general release given in Paragraph 4(a), this Agreement shall be a complete defense in such action or proceeding and the Executive (and his heirs, administrators, executors, administrators and assigns) will have no right to obtain or receive, and will not seek or accept, any damages, settlement or relief of any kind (including attorneys’ fees and costs) as a result of such action or proceeding.

11. Voluntary and Knowing . The Executive represents and warrants that the Executive fully understands the terms of this Agreement and that the Executive knowingly and voluntarily, of the Executive’s own free will without any duress, being fully informed, after due deliberation and after consultation with the Executive’s own counsel, accepts its terms and signs the same as the Executive’s own free act.

12. Revocation Period and Effective Date . Executive acknowledges that the Company has provided the Executive the opportunity to review and consider this Agreement for at least twenty-one (21) days from the date the Company provided the Executive this Agreement. Executive represents that he was advised by the Company to review this Agreement with an attorney before signing. If Executive executes this Agreement prior to the expiration of twenty-one (21) days from the date the Company provided the Executive with this Agreement, the Executive voluntarily and knowingly waives any right the Executive may have, prior to signing this Agreement, to additional time within which to consider the Agreement. The Executive also agrees that any modifications to this Agreement, whether material or immaterial, will not restart the 21-day period. The Executive may revoke this Agreement within seven (7) days after he executes this Agreement by providing written notification of the intended revocation to Joanna L. Geraghty, Executive Vice President and Chief People Officer , at the Company. This Agreement becomes effective on the eighth day after it is executed by both parties, provided that it is not revoked by the Executive prior to that date (the “Effective Date”).

13. Indemnification . The Company agrees to indemnify and hold harmless the Executive from and against all claims, liabilities, suits, demands, proceedings and actions (collectively, “Proceeding”) that may arise from his employment with the Company; provided, however, such indemnification shall not apply to those actions of Executive that were outside the scope of his employment or were a result of his own gross negligence or intentional misconduct; a cause of action by Executive against the Company or its affiliates or their respective directors, officers, agents, representatives or employees; or any indemnification that may be otherwise prohibited by applicable law, rule or regulation, the Company’s organizational documents or would be against public policy. If the Executive has any knowledge of any actual or threatened Proceeding, whether civil, criminal, administrative or investigative, as to which the Executive

 

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may request indemnity under this provision, the Executive shall give the Company prompt written notice thereof. The Company shall be entitled to assume the defense of any Proceeding with counsel of its choice within 15 days after the Executive shall have given notice of the Proceeding, and the Executive shall cooperate with such defense. If the Company fails to assume the defense pursuant to the immediately preceding sentence, the Executive shall have the right to select counsel of his choice (reasonably satisfactory to the Company), and the reasonable fees and expenses of such counsel shall be reimbursed by the Company subject to an undertaking by the Executive to pay back any advanced amounts for which it is determined that he was not entitled to indemnification. Without limiting the indemnity above, the Company shall use commercially reasonable efforts to continue to provide the Executive with applicable Director and Officer coverage as may be provided by the Company to similarly situated Executive Vice Presidents, subject to the terms of those plans or any future changes the Company may make thereto.

14. No Exit Incentive . The payments provided under this Agreement are not offered in connection with any specific exit incentive or other employment termination program.

15. Governing Law; Severability . This Agreement shall be governed in all respects, whether as to validity, construction, capacity, and performance or otherwise by the laws of the State of New York. If any portion of this Agreement is held to be unenforceable by any court of competent jurisdiction, the parties intend that such portion be modified to make it enforceable to the maximum extent permitted by law. If any such portion (other than the general release contained in Paragraph 4(a)) cannot be modified to be enforceable, such portion shall become null and void leaving the remainder of this Agreement in full force and effect.

16. Entire Agreement . This Agreement constitutes the sole and entire agreement between the Company and the Executive and supersedes any and all understanding and agreements made prior hereto, if any. The Executive acknowledges that no promises or representations, oral or written, have been made other that those expressly stated herein, and that he has not replied on any other promises or representations in signing this Agreement.

17. Modification . No provision of this Agreement shall be amended, waived or modified except by an instrument in writing signed by the parties hereto.

18. Counterparts . This Agreement may be executed in counterparts, both of which together shall constitute the original agreement. This Agreement may also be executive by facsimile signature.

 

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19. No Admission of Liability . It is understood and agreed that the execution of this Agreement by the Company is not to be construed as an admission of any liability on its part to Executive other than to comply with the terms of this Agreement.

ACCEPTED AND AGREED:

Dated: 11/23, 2011

 

ED BARNES     JETBLUE AIRWAYS CORPORATION

LOGO

   

LOGO

    By:  

Joanna Geraghty

    Title:  

EVP, Chief People Officer

 

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APPENDIX A

Dave Barger

President & Chief Executive Officer

JetBlue Airways Corporation

118-29 Queens Blvd.

Forest Hills, NY 11375

Dear Dave,

Effective October 18, 2011, I hereby resign my position as Executive Vice President and Chief Financial Officer of JetBlue Airways Corporation and any and all other positions that I might hold with JetBlue Airways Corporation and its affiliates.

 

Sincerely,
LOGO
Ed Barnes

11/23, 2011

 

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Exhibit 10.35

JETBLUE AIRWAYS CORPORATION

2011 CREWMEMBER STOCK PURCHASE PLAN

 

I. PURPOSE OF THE PLAN

This 2011 Crewmember Stock Purchase Plan is intended to promote the interests of JetBlue Airways Corporation, a Delaware corporation, by providing eligible crewmembers with the opportunity to acquire a proprietary interest in the Corporation through participation in a payroll deduction-based employee stock purchase plan designed to qualify under Section 423 of the Code.

Capitalized terms herein shall have the meanings assigned to such terms in the attached Appendix.

 

II. ADMINISTRATION OF THE PLAN

The Plan shall be administered by the Plan Administrator. The Plan Administrator shall have full discretionary authority to interpret and construe any provision of the Plan, to adopt such rules and regulations for administering the Plan as it may deem necessary in order to comply with the requirements of Code Section 423 and all such authority that may be necessary or helpful to enable it to discharge its responsibilities with respect to the Plan. Decisions of the Plan Administrator shall be final and binding on all parties having an interest in the Plan. Subject to applicable laws, rules, and regulations, the Plan Administrator may, in its discretion, from time to time, delegate all or any part of its responsibilities and powers under the Plan to any employee or group of employees of the Corporation or any Participating Corporation, and revoke any such delegation. Notwithstanding the foregoing, the Board, in its absolute discretion, may at any time and from time to time exercise any and all rights, duties and responsibilities of the Plan Administrator under the Plan, including, but not limited to, establishing procedures to be followed by the Plan Administrator.

 

III. STOCK SUBJECT TO PLAN

A. The stock purchasable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares of Common Stock purchased on the open market. The maximum number of shares of Common Stock reserved for issuance over the term of the Plan shall not exceed 8,000,000 shares.

B. In the event of any of the following transactions affecting the Common Stock: any stock split, stock dividend, recapitalization, combination of shares, exchange of shares, or other similar change affecting the outstanding Common Stock, or a merger, consolidation, acquisition of property or shares, spin-off, other distribution of stock or property (including any extraordinary cash or stock dividend), or liquidation or other similar event affecting the Corporation or a subsidiary of the Corporation, then equitable adjustments shall be made to (i) the maximum number and class of securities issuable under the Plan, (ii) the maximum number and class of securities purchasable per Participant on any one Purchase Date, (iii) the maximum number and class of securities purchasable in total by all Participants on any one Purchase Date, and (iv) the number and class of securities and the price per share in effect under each outstanding purchase right. The adjustments shall be made in such manner as the Plan Administrator deems appropriate in order to prevent the dilution or enlargement of benefits under the outstanding purchase rights, and such adjustments shall be final, binding and conclusive on the holders of those rights.

 

IV. OFFERING PERIODS

A. Shares of Common Stock shall be offered for purchase under the Plan through a series of overlapping offering periods until such time as (i) the maximum number of shares of Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated.

 

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B. Each offering period shall be of such duration (not to exceed twenty-four (24) months) as determined by the Plan Administrator prior to the start date of such offering period. Offering periods shall commence at semi-annual intervals on the first business day of May and November each year over the term of the Plan. Accordingly, two (2) separate offering periods shall commence in each calendar year the Plan remains in existence. Unless otherwise determined by the Plan Administrator prior to the start of such offering period, each offering period shall have a maximum duration of six (6) months.

C. Each offering period shall consist of a series of one or more successive Purchase Intervals. Purchase Intervals shall run from the first business day in May to the last business day in October each year and from the first business day in November each year to the last business day in April in the following year. Each offering period will consist of one Purchase Interval, unless the duration of that offering period exceeds six (6) months.

 

V. ELIGIBILITY

A. Each individual who is an Eligible Crewmember on the start date of any offering period under the Plan may enter that offering period on such start date. However, an Eligible Crewmember may participate in only one offering period at a time.

B. An Eligible Crewmember must, in order to participate in the Plan for a particular offering period, complete the enrollment forms prescribed by the Plan Administrator (including a stock purchase agreement and a payroll deduction authorization) and file such forms with the Plan Administrator (or its designate) on or before the start date of that offering period.

 

VI. PAYROLL DEDUCTIONS

A. The payroll deduction authorized by the Participant for purposes of acquiring shares of Common Stock during an offering period may be any multiple of one percent (1%) of the Cash Earnings paid to the Participant during each Purchase Interval within that offering period, up to a maximum of ten percent (10%). The deduction rate so authorized shall continue in effect throughout the offering period, except to the extent such rate is changed in accordance with the following guidelines:

(i) The Participant may, at any time during the offering period, reduce his or her rate of payroll deduction to become effective as soon as administratively possible after filing the appropriate form with the Plan Administrator. The Participant may not, however, effect more than one (1) such reduction per Purchase Interval.

(ii) The Participant may, prior to the commencement of any new Purchase Interval within the offering period, increase the rate of his or her payroll deduction by filing the appropriate form with the Plan Administrator. The new rate (which may not exceed the ten percent (10%) maximum) shall become effective on the start date of the first Purchase Interval following the filing of such form.

B. Payroll deductions from after-tax Cash Earnings shall begin on the first pay day administratively feasible following the start date of the offering period and shall (unless sooner terminated by the Participant) continue through the pay day ending with or immediately prior to the last day of that offering period. The amounts so collected shall be credited to the Participant’s book account under the Plan, but no interest shall be paid on the balance from time to time outstanding in such account. The amounts collected from the Participant shall not be required to be held in any segregated account or trust fund and may be commingled with the general assets of the Corporation and used for general corporate purposes.

C. Payroll deductions shall automatically cease upon the termination of the Participant’s purchase right in accordance with the provisions of the Plan.

 

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D. The Participant’s acquisition of Common Stock under the Plan on any Purchase Date shall neither limit nor require the Participant’s acquisition of Common Stock on any subsequent Purchase Date, whether within the same or a different offering period.

 

VII. PURCHASE RIGHTS

A.  Grant of Purchase Rights . A Participant shall be granted a separate purchase right for each offering period in which he or she is enrolled. The purchase right shall be granted on the start date of the offering period and shall provide the Participant with the right to purchase shares of Common Stock, at the end of each Purchase Interval within that offering period, upon the terms set forth below. The Participant shall execute a stock purchase agreement embodying such terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator may deem advisable.

Under no circumstances shall purchase rights be granted under the Plan to any Eligible Crewmember if such individual would, immediately after the grant, own (within the meaning of Code Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Corporation or any Corporate Affiliate.

B.  Exercise of the Purchase Right . Each purchase right shall be automatically exercised on each successive Purchase Date within the offering period, and shares of Common Stock shall accordingly be purchased on behalf of each Participant on each such Purchase Date. The purchase shall be effected by applying the Participant’s payroll deductions for the Purchase Interval ending on such Purchase Date to the purchase of whole shares of Common Stock at the purchase price in effect for the Participant for that Purchase Date.

C.  Purchase Price . The purchase price per share at which Common Stock will be purchased on the Participant’s behalf on each Purchase Date within a particular offering period in which he or she is enrolled shall be equal to ninety-five percent (95%) of the Fair Market Value per share of Common Stock on such Purchase Date.

D.  Number of Purchasable Shares . The number of shares of Common Stock purchasable by a Participant on each Purchase Date during the particular offering period in which he or she is enrolled shall be the number of whole shares obtained by dividing the amount collected from the Participant through payroll deductions during the Purchase Interval ending with that Purchase Date by the purchase price in effect for the Participant for that Purchase Date. However, the maximum number of shares of Common Stock purchasable per Participant on any one Purchase Date shall not exceed 3,375 shares, subject to periodic adjustments in the event of certain changes in the Corporation’s capitalization. In addition, the maximum number of shares of Common Stock purchasable in total by all Participants in the Plan on any one Purchase Date shall not exceed 1,350,000 shares, subject to periodic adjustments in the event of certain changes in the Corporation’s capitalization. However, the Plan Administrator shall have the discretionary authority, exercisable prior to the start of any offering period under the Plan, to increase or decrease the limitations to be in effect for the number of shares purchasable per Participant and in total by all Participants enrolled in that particular offering period on each Purchase Date which occurs during that offering period.

E.  Excess Payroll Deductions . Any payroll deductions not applied to the purchase of shares of Common Stock on any Purchase Date because they are not sufficient to purchase a whole share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. However, any payroll deductions not applied to the purchase of Common Stock by reason of the limitation on the maximum number of shares purchasable per Participant or in total by all Participants on the Purchase Date or any other reason shall be promptly refunded.

F.  Suspension of Payroll Deductions. In the event that a Participant is, by reason of the accrual limitations in Article VIII, precluded from purchasing additional shares of Common Stock on one or more Purchase Dates during the offering period in which he or she is enrolled, then no further payroll

 

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deductions shall be collected from such Participant with respect to those Purchase Dates. The suspension of such deductions shall not terminate the Participant’s purchase right for the offering period in which he or she is enrolled, and payroll deductions shall automatically resume on behalf of such Participant once he or she is again able to purchase shares during that offering period in compliance with the accrual limitations of Article VIII.

G.  Withdrawal from Offering Period. The following provisions shall govern the Participant’s withdrawal from an offering period:

(i) A Participant may withdraw from the offering period in which he or she is enrolled at any time prior to the next scheduled Purchase Date by filing the appropriate form with the Plan Administrator (or its designate), and no further payroll deductions shall be collected from the Participant with respect to that offering period. Any payroll deductions collected during the Purchase Interval in which such withdrawal occurs shall, at the Participant’s election, be immediately refunded or held for the purchase of shares on the next Purchase Date. If no such election is made at the time of such withdrawal, then the payroll deductions collected from the Participant during the Purchase Interval in which such withdrawal occurs shall be refunded as soon as administratively possible.

(ii) The Participant’s withdrawal from a particular offering period shall be irrevocable, and the Participant may not subsequently rejoin that offering period at a later date. In order to resume participation in any subsequent offering period, such individual must re-enroll in the Plan (by making a timely filing of the prescribed enrollment forms) on or before the start date of that offering period.

H.  Termination of Purchase Right. The following provisions shall govern the termination of outstanding purchase rights:

(i) Should the Participant cease to remain an Eligible Crewmember for any reason (including death, disability or change in status) while his or her purchase right remains outstanding, then that purchase right shall immediately terminate, and all of the Participant’s payroll deductions for the Purchase Interval in which the purchase right so terminates shall be immediately refunded.

(ii) However, should the Participant cease to remain in active service by reason of an approved unpaid leave of absence, then the Participant shall have the right, exercisable up until the last business day of the Purchase Interval in which such leave commences, to (a) withdraw all the payroll deductions collected to date on his or her behalf for that Purchase Interval or (b) have such funds held for the purchase of shares on his or her behalf on the next scheduled Purchase Date. In no event, however, shall any further payroll deductions be collected on the Participant’s behalf during such leave. Upon the Participant’s return to active service (x) within ninety (90) days following the commencement of such leave or (y) prior to the expiration of any longer period for which such Participant has reemployment rights with the Corporation provided by statute or contract, his or her payroll deductions under the Plan shall automatically resume at the rate in effect at the time the leave began, unless the Participant withdraws from the Plan prior to his or her return. An individual who returns to active employment following a leave of absence that exceeds in duration the applicable (x) or (y) time period will be treated as a new Crewmember for purposes of subsequent participation in the Plan and must accordingly re-enroll in the Plan (by making a timely filing of the prescribed enrollment forms) on or before the start date of any subsequent offering period in which he or she wishes to participate.

I.  Change in Control. Each outstanding purchase right shall automatically be exercised, immediately prior to the effective date of any Change in Control, by applying the payroll deductions of each Participant for the Purchase Interval in which such Change in Control occurs to the purchase of whole shares of Common Stock at a purchase price per share equal to ninety-five percent (95%) of the Fair Market Value per share of Common Stock immediately prior to the effective date of such Change in Control.

 

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However, the applicable limitation on the number of shares of Common Stock purchasable per Participant shall continue to apply to any such purchase, but not the limitation applicable to the maximum number of shares of Common Stock purchasable in total by all Participants on any one Purchase Date.

The Corporation shall use its best efforts to provide at least ten (10) days’ prior written notice of the occurrence of any Change in Control, and Participants shall, following the receipt of such notice, have the right to terminate their outstanding purchase rights prior to the effective date of the Change in Control.

Notwithstanding the foregoing provisions of this Section VII.I to the contrary, the Plan Administrator may in its discretion determine that any outstanding purchase rights shall be terminated prior to the effective date of a Change in Control, in which case all payroll deductions for the Purchase Interval in which such purchase rights are terminated shall be promptly refunded.

J.  Proration of Purchase Rights. Should the total number of shares of Common Stock to be purchased pursuant to outstanding purchase rights on any particular date exceed the number of shares then available for issuance under the Plan or the limit on the maximum number of shares of Common Stock purchasable in total by all Participants on any one Purchase Date pursuant to Section VII.D, the Plan Administrator shall make a pro-rata allocation of the shares available or purchasable on a uniform and nondiscriminatory basis, and the payroll deductions of each Participant, to the extent in excess of the aggregate purchase price payable for the Common Stock pro-rated to such individual, shall be refunded.

K.  Assignability. The purchase right shall be exercisable only by the Participant and shall not be assignable or transferable by the Participant.

L.  Stockholder Rights. A Participant shall have no stockholder rights with respect to the shares subject to his or her outstanding purchase right until the shares are purchased on the Participant’s behalf in accordance with the provisions of the Plan and the Participant has become a holder of record of the purchased shares.

 

VIII.  ACCRUAL LIMITATIONS

A. No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with (i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such Participant to purchase more than Twenty-Five Thousand Dollars ($25,000.00) worth of stock of the Corporation or any Corporate Affiliate (determined on the basis of the Fair Market Value per share on the date or dates such rights are granted) for each calendar year such rights are at any time outstanding.

B. For purposes of applying such accrual limitations to the purchase rights granted under the Plan, the following provisions shall be in effect:

(i) The right to acquire Common Stock under each outstanding purchase right shall accrue in one or more installments on each successive Purchase Date during the offering period in which such right remains outstanding.

(ii) No right to acquire Common Stock under any outstanding purchase right shall accrue to the extent the Participant has already accrued in the same calendar year the right to acquire Common Stock under one or more other purchase rights at a rate equal to Twenty-Five Thousand Dollars ($25,000.00) worth of Common Stock (determined on the basis of the Fair Market Value per share on the date or dates of grant) for each calendar year such rights were at any time outstanding.

 

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C. If by reason of such accrual limitations, any purchase right of a Participant does not accrue for a particular Purchase Interval, then the payroll deductions that the Participant made during that Purchase Interval with respect to such purchase right shall be promptly refunded.

D. In the event there is any conflict between the provisions of this Article and one or more provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be controlling.

 

IX. EFFECTIVE TIME AND TERM OF THE PLAN

A. The Plan was adopted by the Board on April 14, 2011, and shall become effective upon the date on which the Plan is approved by the affirmative vote of the holders of a majority of the shares of Common Stock which are present or represented and entitled to vote and voted at a meeting (the “ Effective Time ”), which approval must occur within the period ending twelve (12) months before or after the date the Plan is adopted by the Board.

B. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of (i) the last business day in April 2021, (ii) the date on which all shares available for issuance under the Plan shall have been sold pursuant to purchase rights exercised under the Plan, and (iii) the date on which all purchase rights are exercised in connection with a Change in Control. No further purchase rights shall be granted or exercised, and no further payroll deductions shall be collected, under the Plan following such termination.

C. From and after the Effective Time, no further grants shall be made under the JetBlue Airways Corporation Crewmember Stock Purchase Plan, as in effect immediately prior to the Effective Time (the “ Prior Plan ”); however , any purchase rights outstanding under the Prior Plan before the Effective Time shall continue in effect in accordance with their terms.

 

X. AMENDMENT AND TERMINATION OF THE PLAN

A. The Board may alter, amend, suspend or terminate the Plan at any time to become effective immediately following the close of any Purchase Interval. However, the Plan may be amended or terminated immediately upon Board action, if and to the extent necessary to assure that the Corporation will not recognize, for financial reporting purposes, any compensation expense in connection with the shares of Common Stock offered for purchase under the Plan, should the financial accounting rules applicable to the Plan at the Effective Time be subsequently revised so as to require the Corporation to recognize compensation expense in the absence of such amendment or termination.

B. In no event may the Board effect any of the following amendments or revisions to the Plan without the approval of the Corporation’s stockholders: (i) increase the number of shares of Common Stock issuable under the Plan, except for permissible adjustments in the event of certain changes in the Corporation’s capitalization, (ii) alter the purchase price formula so as to reduce the purchase price payable for the shares of Common Stock purchasable under the Plan, (iii) modify the eligibility requirements for participation in the Plan, or (iv) any other amendment requiring stockholder approval under any applicable law, regulation or rule.

C. The Board may at any time terminate an offering period then in progress and provide that Participants’ then outstanding payroll deductions shall be promptly refunded.

 

XI. GENERAL PROVISIONS

A. All costs and expenses incurred in the administration of the Plan shall be paid by the Corporation; however, each Plan Participant shall bear all costs and expenses incurred by such individual in the sale or other disposition of any shares purchased under the Plan.

B. Nothing in the Plan shall confer upon the Participant any right to continue in the employ of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with or

 

6


otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate employing such person) or of the Participant, which rights are hereby expressly reserved by each, to terminate such person’s employment at any time for any reason, with or without cause.

C. The provisions of the Plan shall be governed by the laws of the State of Delaware without resort to that State’s conflict-of-laws rules.

 

7


Schedule A

Corporations Participating in

2011 Crewmember Stock Purchase Plan

As of the Effective Time

JetBlue Airways Corporation

 

8


APPENDIX

The following definitions shall be in effect under the Plan:

A.  Board shall mean the Corporation’s Board of Directors.

B.  Cash Earnings shall mean (i) the regular base salary paid to a Participant by one or more Participating Companies during such individual’s period of participation in one or more offering periods under the Plan plus (ii) all overtime payments, bonuses, commissions, profit-sharing distributions or other incentive-type payments received during such period. Such Cash Earnings shall be calculated before deduction of (A) any income or employment tax withholdings, or (B) any contributions made by the Participant to any Code Section 401(k) salary deferral plan or any Code Section 125 cafeteria benefit program now or hereafter established by the Corporation or any Corporate Affiliate. However, Cash Earnings shall not include any non-cash items, severance or notice pay, income attributable to stock options or other stock-base compensation or contributions made by the Corporation or any Corporate Affiliate on the Participant’s behalf to any crewmember benefit or welfare plan now or hereafter established (other than Code Section 401(k) or Code Section 125 contributions deducted from such Cash Earnings).

C.  Change in Control shall mean the occurrence of any of the following:

(i) Any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “ Person ”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then-outstanding shares of common stock of the Corporation (the “ Outstanding Corporation Common Stock ”) or (B) the combined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “ Outstanding Corporation Voting Securities ”); provided , however , that, for purposes of this Section 2(h), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Corporation, (ii) any acquisition by the Corporation, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any Affiliate or (iv) any acquisition by any corporation pursuant to a transaction that complies with Sections C(iii)(1), C(iii)(2) and C(iii)(3) below;

(ii) Any time at which individuals who, as of the Effective Time, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided , however , that any individual becoming a director subsequent to the Effective Time whose election, or nomination for election by the Corporation’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Corporation or any Affiliate, a sale or other disposition of all or substantially all of the assets of the Corporation, or the acquisition of assets or stock of another entity by the Corporation or any Affiliate (each, a “ Business Combination ”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or

 

9


more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Corporation Common Stock and the Outstanding Corporation Voting Securities, as the case may be, (2) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Corporation or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or

(iv) The consummation of a plan of complete liquidation or dissolution of the Corporation.

D.  Code shall mean the Internal Revenue Code of 1986, as amended.

E.  Common Stock shall mean the Corporation’s common stock.

F.  Corporate Affiliate shall mean (i) any parent or subsidiary corporation of the Corporation (as determined in accordance with Code Section 424), whether now existing or subsequently established, and, (ii) solely for purposes of the definition of Change in Control, any Person that directly or indirectly controls, is controlled by or is under common control with the Corporation. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities, by contract or otherwise.

G.  Corporation shall mean JetBlue Airways Corporation, a Delaware corporation, and any corporate successor to all or substantially all of the assets or voting stock of JetBlue Airways Corporation that shall by appropriate action adopt the Plan.

H.  Effective Time shall have the meaning given such term in Section IX.A. Any Corporate Affiliate that becomes a Participating Corporation after such Effective Time shall designate a subsequent Effective Time with respect to its Eligible Crewmember-Participants (except with respect to the definition of Change in Control).

I.  Eligible Crewmember shall mean any person who is paid remuneration for services rendered as an employee of one or more Participating Corporations.

J.  Exchange Act shall mean the Securities Exchange Act of 1934, as it may be amended from time to time, including the rules and regulations promulgated thereunder and successor provisions and rules and regulations thereto.

K.  Fair Market Value per share of Common Stock on any relevant date shall be determined in accordance with the following provisions: if the Common Stock is at the time listed on any Stock Exchange, then the Fair Market Value shall be the average of the highest and the lowest selling price per share of Common Stock on the date in question on the Stock Exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no such average selling price for the Common Stock on the date in question, then the Fair Market Value shall be the average of the highest and the lowest selling price per share of Common Stock on the last preceding date for which such quotation exists.

L.  1933 Act shall mean the Securities Act of 1933, as amended.

M.  Participant shall mean any Eligible Crewmember of a Participating Corporation who is actively participating in the Plan.

 

10


N.  Participating Corporation shall mean the Corporation and such Corporate Affiliate or Affiliates as may be authorized from time to time by the Board to extend the benefits of the Plan to their Eligible Crewmembers. The Participating Corporations in the Plan are listed in attached Schedule A.

O.  Plan shall mean the Corporation’s 2011 Crewmember Stock Purchase Plan, as set forth in this document.

P.  Plan Administrator shall mean the committee of two (2) or more Board members appointed by the Board to administer the Plan.

Q.  Purchase Date shall mean the last business day of each Purchase Interval.

R.  Purchase Interval shall mean each successive six (6)-month period within a particular offering period at the end of which there shall be purchased shares of Common Stock on behalf of each Participant.

S.  Stock Exchange shall mean the Nasdaq Stock Exchange or such other securities exchange or inter-dealer quotation system as may at the applicable time be the principal market for the Common Stock.

 

11

Exhibit 12.1

JETBLUE AIRWAYS CORPORATION

COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES

(in millions, except ratios)

 

     Year Ended December 31,  
     2011     2010     2009     2008     2007  

Earnings:

          

Income (loss) before income taxes

   $ 145      $ 161      $ 104      $ (89   $ 31   

Less: capitalized interest

     (5     (4     (7     (48     (43

Add: Fixed charges

     273        272        298        357        343   

Amortization of capitalized interest

     2        2        2        2        1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total earnings

   $ 415      $ 431      $ 397      $ 222      $ 332   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Fixed charges:

          

Interest expense

   $ 171      $ 172      $ 189      $ 228      $ 230   

Amortization of debt costs

     8        8        9        17        6   

Rent expense representative of interest

     94        92        100        112        107   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total fixed charges

   $ 273      $ 272      $ 298      $ 357      $ 343   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Ratio of earnings to fixed charges (1)

     1.52        1.59        1.33                 
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Earnings were inadequate to cover fixed charges by $135 million and $11 million for the years ended December 31, 2008 and 2007, respectively.

Exhibit 21.1

JETBLUE AIRWAYS CORPORATION

LIST OF SUBSIDIARIES

As of December 31, 2011

LiveTV, LLC (Delaware limited liability company)

LiveTV International, Inc. (Delaware corporation)

BlueBermuda Insurance, LTD (Bermuda corporation)

LiveTV Airfone LLC. (Delaware limited liability company)

JetBlue Airways Corporation Sucursal Colombia (Colombia corporation)

 

Exhibit 23

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the following Registration Statements:

 

  (1) Registration Statement (Form S-3 No. 333-162744) of JetBlue Airways Corporation;

 

  (2) Registration Statement (Form S-8 No. 333-86444) pertaining to the JetBlue Airways Corporation 2002 Stock Incentive Plan;

 

  (3) Registration Statement (Form S-8 No. 333-129238), pertaining to the JetBlue Airways Corporation Crewmember Stock Purchase Plan;

 

  (4) Registration Statement (Form S-8 No. 333-161565), pertaining to the JetBlue Airways Corporation 2002 Stock Incentive Plan and the JetBlue Airways Corporation Crewmember Stock Purchase Plan; and

 

  (5) Registration Statement (Form S-8 No. 333-174947), pertaining to the JetBlue Airways Corporation 2011 Incentive Compensation Plan and the JetBlue Airways Corporation Crewmember Stock Purchase Plan

of our reports dated February 28, 2012, with respect to the consolidated financial statements of JetBlue Airways Corporation, the effectiveness of internal control over financial reporting of JetBlue Airways Corporation and the financial statement schedule of JetBlue Airways Corporation listed in Item 15(2) included in this Annual Report (Form 10-K) for the year ended December 31, 2011.

/s/ Ernst & Young LLP

New York, New York

February 28, 2012

EXHIBIT 31.1

Rule 13a-14(a)/15d-14(a) Certification of the Chief Executive Officer

I, David Barger, certify that:

1.    I have reviewed this Annual Report on Form 10-K of JetBlue Airways Corporation;

2.    Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.    Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.    The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.    The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2012

 

/s/ DAVID BARGER

David Barger

Chief Executive Officer

EXHIBIT 31.2

Rule 13a-14(a)/15d-14(a) Certification of the Chief Financial Officer

I, Mark D. Powers, certify that:

1. I have reviewed this Annual Report on Form 10-K of JetBlue Airways Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2012

 

/s/ MARK D. POWERS

Mark D. Powers

Chief Financial Officer

Exhibit 32

JETBLUE AIRWAYS CORPORATION

SECTION 1350 CERTIFICATIONS

In connection with the Annual Report on Form 10-K of JetBlue Airways Corporation for the year ended December 31, 2011, as filed with the Securities and Exchange Commission on February 28, 2012 (the “Report”), the undersigned, in the capacities and on the dates indicated below, each hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Report fully complies with requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of JetBlue Airways Corporation.

 

   
Date: February 28, 2012   By:   /s/ DAVID BARGER
       

David Barger

Chief Executive Officer

Date: February 28, 2012     By:   /s/ MARK D. POWERS
       

Mark D. Powers

Chief Financial Officer