Exhibit 4.6
EXECUTION VERSION
Date: November 14, 2006
To: Wilmington Trust Company
From: Xxxxxx Xxxxxxx Capital Services Inc.
Subject: ABOVE CAP LIQUIDITY FACILITY CONFIRMATION
REFERENCE NUMBER: SQCF7
Ladies and Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to confirm
the terms and conditions of the Interest Rate Cap Transaction entered into on
the Trade Date referred to in Paragraph 2 below (the "Transaction") between
Xxxxxx Xxxxxxx Capital Services Inc. ("Party A") and Wilmington Trust Company in
its capacity as Subordination Agent on behalf of the Trustee under the JetBlue
Airways (Spare Parts) G-1 Pass Through Trust ("Party B"). This letter agreement
constitutes a "Confirmation" as referred to in the ISDA Master Agreement
specified below.
1. The definitions and provisions contained in the 2000 ISDA Definitions and
Annex to the 2000 ISDA Definitions (June 2000 Version) as published by the
International Swaps and Derivatives Association, Inc. (as so supplemented,
the "Definitions") are incorporated into this Confirmation. In the event of
any inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. References herein to a "Transaction" shall be
deemed to be references to a "Swap Transaction" for the purposes of the
Definitions.
This Confirmation supplements, forms a part of, and is subject to the 1992
ISDA Master Agreement (Multicurrency - Cross Border) including the Schedule
thereto, dated as of November 14, 2006 as amended and supplemented from
time to time (collectively, the "Agreement"), between us. All provisions
contained in the Agreement govern this Confirmation except as modified
below. In the event of any inconsistency between the Agreement and this
Confirmation, this Confirmation will govern. Capitalized terms not
otherwise defined in the Agreement or this Confirmation shall have the
meanings ascribed to them in the Intercreditor Agreement dated as of
November 14, 2006 among Wilmington Trust Company, as Trustee under the
JetBlue Airways (Spare Parts) G-1 Pass Through Trust and JetBlue Airways
(Spare Parts) B-1 Pass Through Trust and under various other JetBlue
Airways (Spare Parts) Pass Through Trusts which may be created from time to
time hereafter, the Initial Primary Liquidity Provider, Initial Above-Cap
Liquidity Provider and Initial Policy Provider executing such agreement as
such, the Additional Primary Liquidity Provider(s), Additional Above-Cap
Liquidity Provider(s) and Additional Policy Provider(s), if any, which may
from time to time hereafter become parties thereto as therein provided, and
Wilmington Trust Company, as Subordination Agent (the "Intercreditor
Agreement") as each such term relates to, and is used in the context of,
the Class G-1 Certificates
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and not to any other Class of Certificates. The Agreement and the
Confirmation will be governed by and construed in accordance with the laws
of the State of New York.
Each of Party A and Party B represents to the other that it has entered
into this Transaction in reliance upon such independent accounting,
regulatory, legal, tax and financial advice as it deems necessary and not
upon any view expressed by the other.
2. Party A and Party B by this Confirmation are entering into a Transaction
(the "Above-Cap Liquidity Facility") that provides an irrevocable interest
rate cap. The terms of the Above-Cap Liquidity Facility are as follows:
General Terms:
Transaction Type: Interest Rate Cap Transaction
Notional Amount: The Pool Balance for the Class G-1 Certificates
from time to time. The Notional Amount as of
any Floating Rate Payer Payment Date shall be
determined before giving effect to any
distributions on such Class G-1 Certificates on
such Floating Rate Payer Payment Date.
Trade Date: November 7, 2006
Effective Date: November 14, 2006
Termination Date: The first Business Day following the earlier of
(i) January 2, 2016 and (ii) the date on which
payment in full of Final Distributions with
respect to the Class G-1 Certificates has been
made.
Currency Unit: USD
Business Day/Local Business "Business Day" as defined in the Intercreditor
Day: Agreement for all purposes under the Agreement.
Business Day Convention: Following
Fixed Amounts:
Fixed Amount Payer: Party B
Fixed Amount Payer Payment Effective Date
Date:
Fixed Amount: As set forth in a separate letter agreement
between Party A and Party B.
Floating Amounts:
Floating Rate Payer: Party A
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Floating Amount: On each Floating Rate Payer Payment Date on
which (i) the Floating Rate Option exceeds the
Cap Rate and (ii) a Drawing Event (as defined
below) has occurred, the Floating Amount shall
be calculated as follows:
In the event that either (a) the Available
Amount under the Primary Liquidity Facility
(before giving effect to any Interest Drawing
to be made on such Payment Date) is greater
than zero or (b) the amount on deposit in the
Primary Cash Collateral Account (before giving
effect to any withdrawals to be made from such
account on such Payment Date) is greater than
zero, the Floating Amount shall equal the
Above-Cap Payment for such date.
In the event that both statements in clauses
(a) and (b) above are not true, then the
Floating Amount shall equal zero.
Period End Dates: Each April 2, July 2, October 2 and January 2,
commencing on January 2, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention.
Floating Rate Payer Payment Each day that is a Period End Date and any
Dates: Special Distribution Date not coinciding with a
Period End Date on which a distribution of
interest is, by the terms of the Intercreditor
Agreement, to be made on the Class G-1
Certificates.
Floating Rate Option: USD-LIBOR-BBA; provided that, if the relevant
rate does not appear on the Telerate Page 3750,
the rate shall be "LIBOR" as defined in the
Intercreditor Agreement; and provided further
that the Floating Rate Option shall be deemed
to equal the Cap Rate during such period as the
Stated Interest Rate applicable to the Class
G-1 Certificates is subject to the Capped
Interest Rate pursuant to the proviso in the
definition of "Stated Interest Rate" in the
Intercreditor Agreement.
Cap Rate: 10%
Designated Maturity: 3-Month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of the relevant Calculation
Period.
Compounding: Inapplicable
Notice: Party B shall, on or before 12:00 p.m. (New
York time) on each Floating Rate Payer Payment
Date, provide Party A with notice
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of the then-current Pool Balance of the Class
G-1 Certificates and the Floating Amount
payable, if any, together with, if such
Floating Amount is payable, the certification
referred to in the final sentence of Section
3.5(a) of the Intercreditor Agreement.
3. Role of Party A; Role of Calculation Agent
(i) Party B acknowledges that: (a) in connection with this Transaction and
this Agreement, Party A has acted in the capacity of an arm's-length
contractual counterparty and not as its financial advisor or
fiduciary; and (b) in exercising its rights or performing any of its
duties under this Agreement, Party A will act as principal and not as
a fiduciary of Party B.
(ii) Whenever the Calculation Agent is required to act or exercise judgment
in any way, it will do so in good faith and in a commercially
reasonable manner. The calculations and determinations of the
Calculation Agent shall be made in accordance with terms of this
Confirmation having regard in each case to the criteria stipulated
herein.
4. Credit Downgrade/Replacement of Above-Cap Liquidity Provider
In the event the relevant credit rating of Xxxxxx Xxxxxxx or any successor
or permitted assignee as Liquidity Guarantor issued by any Rating Agency at any
time is lower than the applicable Threshold Rating ("Credit Downgrade") or an
Event of Default specified in Section 5(a)(iii)(2) or 5(a)(iii)(3) of the
Agreement ("Credit Support Event") occurs, Party A may, within ten days, at its
own expense, arrange for one or more Replacement Above-Cap Liquidity Providers
to enter into and deliver to Party B a Replacement Above-Cap Liquidity Facility
for the Above-Cap Liquidity Facility. If Party A does not arrange for such
replacement and if this Above-Cap Liquidity Facility has not otherwise been
replaced by JetBlue Airways Corporation (at the expense of JetBlue Airways
Corporation) in accordance with the terms of Section 3.5(c)(iv) of the
Intercreditor Agreement, then (i) in the case of a Credit Support Event, such
10th day (or if such 10th day is not a Business Day, the next succeeding
Business Day) shall be designated an "Early Termination Date" and Part 1(j) of
the Schedule to the Agreement will apply to Party A and (ii) in the case of a
Credit Downgrade, Part 1(j) of the Schedule to the Agreement will apply to Party
A as if such 10th day (or if such 10th day is not a Business Day, the next
succeeding Business Day) were designated an "Early Termination Date".
5. Additional Definitions
"Drawing Event" shall mean an event on any Distribution Date that is not a
date on which Final Disposition proceeds are being distributed and where Party
B, after giving effect to the subordination provisions of the Intercreditor
Agreement and any Election Interest Payments made by the Policy Provider (but
without regard to drawings under the Primary Liquidity Facility or withdrawals
from the Primary Cash Collateral Account or Above-Cap Account or under the
Policy (other than Election Interest Payments)), shall not have sufficient funds
for the payment of any amounts due and owing in respect of accrued interest on
the Class G Certificates.
"Threshold Rating" shall mean, for purposes of this Agreement, the
short-term unsecured debt rating of P-1 by Xxxxx'x and short-term issuer credit
rating of A-1 by Standard & Poor's.
6. Payments
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Party A hereby irrevocably instructs Party B to make any payment due to
Party A directly to the account specified below in the name of Party A. Party B
hereby irrevocably instructs Party A to make any payments of Floating Amounts
and any Termination Amount due to Party B directly to the account specified
below in the name of Party B. All payments by Party A of Floating Amounts and
any Termination Amount due to Party B shall be made prior to 5:00 p.m. (New York
City time) on the date such payment is due without setoff, deduction,
withholding, netting, or any other reduction.
7. Account Details
Payments to Party A: Citibank, New York
ABA#: 021 000 089
Account#: 4072 4601
Reference: Xxxxxx Xxxxxxx Capital Services Inc.
Payments to Party B: Wilmington Trust Company
ABA#: 000000000
Account#: 078649-001
Reference: Jet Blue 2006 Spare Parts G-1 Above Cap
8. Offices
The Office of Party A for the Transaction is its office at the address
specified for notices to it in the Schedule to the Agreement. The Office of
Party B for the Transaction is its office at the address specified for notices
to it in the Schedule to the Agreement.
9. Counterparts
This Confirmation may be executed in any number of counterparts and by each
party hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
Confirmation.
[Signatures follow on separate pages]
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Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours sincerely,
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By:
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Name:
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Title:
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Above-Cap Confirmation
Confirmed as of the date first written above:
WILMINGTON TRUST COMPANY
in its capacity as Subordination Agent
on behalf of the Trustee under the
JetBlue Airways (Spare Parts) G-1
Pass Through Trust
By:
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Name:
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Title:
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Above-Cap Confirmation
