A320 Purchase Agreement [Amendment No. 2] - AVSA SARL and JetBlue Airways Corp.
Amendment No. 2 To the A320 Purchase Agreement Dated as of April 20, 1999 Between AVSA, S.A.R.L. And JetBlue Airways Corporation This Amendment No. 2 (the "Amendment") is entered into as of March 13 2000, between AVSA, S.A.R.L., a societe a responsabilite limitee organized and existing under the laws of the Republic of France, having its registered office located at 2, rond-point Maurice Bellonte, 31700 Blagnac, France (the "Seller"), and JetBlue Airways Corporation, a corporation organized and existing under the laws of the State of Delaware, USA, having its principal corporate offices located at 80-02 Kew Gardens Road, 6th Floor, Kew Gardens, New York, 11415 USA (the "Buyer"). WITNESSETH WHEREAS, the Buyer and Seller have entered into an Airbus A320 Purchase Agreement dated as of April 20, 1999, which, together with all Exhibits, Appendixes and Letter Agreements attached thereto and as amended by Amendment No. 1 dated as of September 30, 1999 (the "Agreement"), covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Airbus Industrie A320-200 aircraft (the "Buyer's Aircraft"), under the terms and conditions set forth in said Agreement, WHEREAS, the Buyer has leased or will lease from certain lessors Airbus Industrie A320 aircraft (the "Leased Aircraft"), WHEREAS, the Buyer intends to install satellite television systems, which systems will include, but not be limited to, antennas, radomes, equipment racks, and cabin screens ("LiveTV") on certain of the Buyer's Aircraft and the Leased Aircraft (such Buyer's Aircraft and Leased Aircraft, the "Aircraft"), WHEREAS, as a result of the Buyer's decision to install LiveTV on the Aircraft, the Buyer and Seller have agreed to set forth in this Amendment certain additional terms and conditions, amendments to Clause 12.2 of the Agreement and Letter Agreement No. 7 to the Agreement. <Page> NOW, THEREFORE, IT IS AGREED AS FOLLOWS 1. DEFINITIONS Capitalized terms used herein and not otherwise defined in this Amendment will have the meanings assigned thereto in the Agreement. The terms "herein", "hereof" and "hereunder" and words of similar import refer to this Amendment. 2. ADDITIONAL TERMS AND CONDITIONS 2.1 SELLER'S REPORT 2.1.1 The Buyer and Seller agree to certain terms and conditions under which the Seller has purchased or will purchase from the Manufacturer for sale to the Buyer structural substantiation reports (the "Reports") that are limited to the impact of LiveTV on the Aircraft structures around the: (i) antenna radome attachments, and (ii) electronic rack in the cargo hold. 2.1.2 The Buyer acknowledges that the Report is limited to an analysis of: (i) stress, (ii) fatigue life and damage/tolerance, and (iii) repercussions on the maintenance program. 2.1.3 The Seller's involvement in the FAA supplemental type certificate certifying the installation and operation of LiveTV (the "STC") is limited to the provision of the Reports. 2.1.4 The Buyer further acknowledges that in preparing the Reports, the Seller has relied on data provided by the Buyer, which the Seller has not independently verified. 2.2 PRICE AND PAYMENT 2.2.1 PRICE The price for the Report (the "Price") is USD [****]. 2.2.2 PAYMENT TERMS ---------- [****] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended. 2 <Page> Upon receipt of an invoice, the Buyer will pay the Price in immediately available funds in United States dollars to Credit Lyonnais, New York, for transfer by Credit Lyonnais to the Seller's account with Credit Lyonnais at 1, Esplanade Compans Caffarelli, 31000 Toulouse, France, or such other account as may be designated by the Seller. 2.3 INSTALLATION The Buyer and the Seller agree that the Seller will bear no responsibility whatsoever for any costs pertaining or related to the installation or operation of LiveTV. 3. AMENDMENTS 3.1 CLAUSE 12.2 3.1.1 The Service Life Policy as described in Clause 12.2 of the Agreement is hereby amended by the addition of the following quoted provision as Clause 12.2.6: QUOTE 12.2.6 The Buyer agrees that if a Failure occurs in an Item and the Seller determines that the cause of the Failure is attributable to any component of the satellite television systems, including, but not limited to, antennas, radomes, equipment racks, and cabin screens that are installed on the Aircraft ("LiveTV") or the installation thereof: (i) the Seller will have no obligation whatsoever to design or furnish a correction or replace the Item, and (ii) Clause 12.2.2 and Clause 12.2.3 will not apply to such Failure. UNQUOTE 3.2 LETTER AGREEMENT NO. 7 3.2.1 Clause 4.6 of Letter Agreement No. 7 to the Agreement, which lists the Excluded Delays to the dispatch reliability guarantee, is hereby amended by the addition of the following quoted provision as Section 10 and Section 11: QUOTE (10) Delays attributable to the malfunction of any component of the satellite television systems, including, but not limited to, antennas, radomes, equipment racks, and cabin screens that are installed on the Aircraft ("LiveTV"). ---------- [****] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended. 3 <Page> (11) Delays attributable to the performance of the Aircraft or Aircraft Systems due to the installation or operation of LiveTV. UNQUOTE 4. WARRANTY AND INDEMNITY 4.1 THE SELLER MAKES NO WARRANTY OF ANY KIND OR NATURE WITH RESPECT TO THE REPORT SUPPLIED HEREUNDER, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL 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 THE DESIGN, INSTALLATION, OPERATION OR EFFECT OF LIVETV. In consideration of the Seller's provision of the Report under this Amendment, the Buyer hereby forever releases the Seller, its affiliates, assigns, agents, representatives and employees from any and all obligations, claims, losses, liabilities, costs, expenses and damages with respect to the: (i) issuance of the STC, (ii) installation of LiveTV in or on the Aircraft, (iii) performance of LiveTV, and (iv) performance of the Aircraft as a result of the installation or operation of LiveTV. 4.2 The Buyer will indemnify and hold the Seller, its affiliates, agents, representatives and employees harmless from and against all losses, liabilities, costs, expenses and damages, including court costs and reasonable attorney's fees, arising from claims by third parties for personal injuries and/or death and/or property damage arising out of the: (i) issuance of the STC, (ii) installation of LiveTV in or on the Aircraft, (iii) performance of LiveTV, and (iv) performance of the Aircraft as a result of the installation or operation of LiveTV. 4 <Page> 5. EFFECT OF THE AMENDMENT The Agreement will be deemed to be 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 said Agreement, and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions in this Amendment will govern. 6. CONFIDENTIALITY This Amendment is subject to the confidentiality provisions set forth in Clause 22.5 of the Agreement. 7. SEVERABILITY In the event that any provision of this Amendment should for any reason be held to be without effect, the remainder of this Amendment 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 Amendment prohibited or unenforceable in any respect. 8. HEADINGS All headings in this Amendment are for convenience of reference only and do not constitute a part of this Amendment. 9. COUNTERPARTS This Amendment 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. 5 <Page> IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers or agents on the dates written below. AVSA, S.A.R.L. By: /s/ Michele Lascaux ------------------------ MICHELE LASCAUX Its: Director Contracts ------------------------ Date: March 13, 2000 ------------------------ JETBLUE AIRWAYS CORPORATION By: /s/ T. E. Anderson ------------------------- Its: VICE PRESIDENT ------------------------- Date: March 18, 2000 ------------------------- 6