CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT THAT IS MARKED BY [***] HAS BEEN OMITTED BECAUSE IT (I) IS NOT MATERIAL AND (II) IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
AMENDMENT NO. 5
to the A320 Family Aircraft Purchase Agreement
Dated as of October 19, 2011
Between
AIRBUS S.A.S.
And
JETBLUE AIRWAYS CORPORATION
This Amendment No. 5 (hereinafter referred to as the “Amendment”) is entered into as of August 9, 2016 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 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 27-01 Queens Plaza North, Long Island City, New York 11101 (formerly 118-29 Queens Boulevard, Forest Hills, New York 11375), United States of America (the “Buyer”).
WHEREAS, the Buyer and the Seller entered into an A320 Family Purchase Agreement dated as of October 19, 2011, relating to the sale by the Seller and the purchase by the Buyer of certain firmly ordered Airbus A320 aircraft, which together with all amendments, exhibits, appendices, and letter agreements attached thereto is hereinafter called the “Agreement”.
WHEREAS, the Buyer and the Seller wish to amend the Agreement to reflect the rescheduling of certain aircraft.
NOW THEREFORE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, IT IS AGREED AS FOLLOWS:
0 DEFINED TERMS
The capitalized terms used herein and not otherwise defined in this Amendment will have the meanings assigned to them in the Agreement. Except as used within quoted text, the terms “herein”, “hereof”, and “hereunder” and words of similar import refer to this Amendment.
Clause 0 of the Agreement is hereby amended to modify, add or replace the following quoted terms:
QUOTE
Exhibit 10.6(e)
A321 NEO Standard Specification means the A321 NEO ACF standard specification number E.000.02000NX Issue 1 dated 22nd April 2016, a copy of which has been annexed hereto as Exhibit A.
UNQUOTE
1 RESCHEDULING
1.1
The Buyer and the Seller hereby agree to irrevocably:
(a)
reschedule each of the three (3) Converted A321 NEO Aircraft identified with CACiDs 402 132, 402 133 and 402 134 currently scheduled for delivery in [***], [***], [***] and [***] 2018 respectively to be scheduled for delivery in [***] (for 402 132) and [***] (for 402 133 and 402 134) of 2019, and
(b)
reschedule each of the three (3) Additional A321 Aircraft identified with Aircraft Rank Numbers 261, 262 and 263 currently scheduled for delivery in [***] 2019 to be scheduled for delivery in [***], [***] and [***] 2018 respectively,
each as detailed in the following table:
CACiD
Aircraft Rank No.
Original Delivery Schedule
Revised Delivery Schedule
Aircraft Type
402 132
179
[***] 2018
[***] 2019
Converted A321 NEO Aircraft
402 133
180
[***] 2018
[***] 2019
Converted A321 NEO Aircraft
402 134
181
[***] 2018
[***] 2019
Converted A321 NEO Aircraft
10054100
261
[***] 2019
[***] 2018
Additional A321Aircraft
10054101
262
[***] 2019
[***] 2018
Additional A321Aircraft
10054102
263
[***] 2019
[***] 2018
Additional A321Aircraft
Accordingly, Schedule 1 to the Agreement (Delivery Schedule) is deleted in its entirety and replaced by the Amended and Restated Schedule 1 (the “Amended and Restated Schedule 1”) attached hereto as Appendix 1. For reference purposes only, CACiD numbers are added to the Amended and Restated Schedule 1 for all Aircraft that did not previously have CACiD numbers.
Exhibit 10.6(e)
1.2
It shall be the Buyer’s sole responsibility to ensure, without any intervention necessary from the Seller, that all of the BFE Suppliers are notified of and accept the rescheduling set forth in Clause 1.1 above without the Seller incurring any costs, losses, expenses, additional obligations, penalties, damages or liabilities of any kind by reason of such rescheduling, and the Buyer will indemnify and hold the Seller harmless against any and all of such costs, losses, expenses, additional obligations, penalties, damages or liabilities so incurred by the Seller unless such costs, losses, expenses, additional obligations, penalties, damages or liabilities are a result of the Seller’s gross negligence or willful misconduct.
1.3
Without prejudice to Clause 1.2, the Buyer shall enter into discussions directly with the A320 Propulsion Systems Manufacturer to amend the relevant propulsion systems agreement(s) in order to reflect the rescheduling in Clause 1.1 above and will indemnify and hold the Seller harmless against any and all costs, losses, expenses, obligations, penalties, damages or liabilities so incurred by the Seller in the event that the Buyer fails to perform its obligations as set out under this Clause 1.3 unless such costs, losses, expenses, additional obligations, penalties, damages or liabilities are a result of the Seller’s gross negligence or willful misconduct.
2 PREDELIVERY PAYMENTS
Any and all Predelivery Payments that the Buyer has paid to the Seller and which would no longer be due as a result of the amendments described herein will be [***].
3 OTHER AMENDMENTS
3.1
Clause 2.1.2.2 of the Agreement is deleted in its entirety and in replaced with the following Clause 2.1.2.2 to read as set forth in the following quoted text:
QUOTE
2.1.2.2
CabinFlex Door Configuration
The Seller is currently developing a new door configuration for the A321 NEO and A321 LR aircraft types, allowing the installation of up to 240 seats through, amongst other means, the activation or deactivation of certain doors (the “CabinFlex Door Configuration” or “ACF”).
The baseline CabinFlex Door Configuration shall consist of a Type C door 1, a Type III overwing exit, a Type C door 3 and a Type C door 4 and shall allow for up to 220 seats to be installed on A321 NEO and A321 LR aircraft (“Baseline ACF”).
The Buyer hereby acknowledges and agrees that the Baseline ACF shall be irrevocably implemented on all A321 NEO Aircraft under the Agreement, including A321 LR Converted Aircraft, [***], and that such Aircraft will be manufactured in accordance with the A321 NEO Standard
Exhibit 10.6(e)
Specification (ACF standard specification number E.000.02000NX Issue 1 dated 22nd April 2016), incorporated into the Agreement through the execution of amendment No.3 to the Agreement.
In addition to the Baseline ACF, at the time of cabin definition and within a timeframe compatible with the contractual definition freeze (“CDF”) of the applicable A321 NEO Aircraft and A321 LR Aircraft, the Buyer shall have the possibility of modifying the allowable seating capacity of the A321 NEO Aircraft and A321 LR Aircraft, [***], by executing the relevant SCNs covering the installation of an additional Type III overwing exit and/or the de-activation of the Door 3, and such other additional cabin features as may be selected by SCN. [***].
UNQUOTE
4
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 contains the entire agreement between the Buyer and the Seller with respect to the subject matter hereof and 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 its execution.
5
CONFIDENTIALITY
This Amendment is subject to the confidentiality provisions set forth in Clause 22.10 of the Agreement.
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 Clause 6 will be void and of no force or effect.
Exhibit 10.6(e)
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.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment by their respective officers or agents as of the date first above written.
JETBLUE AIRWAYS CORPORATION AIRBUS S.A.S.
By: /s/ Mark D. Powers By: /s/ Benoit de Saint-Exupery
Its: Chief Financial Officer Its: Vice President Contracts