Exhibit 4.40
APPENDIX A
to
Participation Agreement
(Steelcase Trust No. 2000-1)
I. General Provisions.
In the Participation Agreement and each other Operative Document,
unless the context otherwise requires:
(a) any term defined below by reference to another instrument or
document shall continue to have the meaning ascribed thereto whether or not such
other instrument or document remains in effect;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) a reference to a part, clause, section, article, exhibit or
Schedule is a reference to a part, clause, Section and article of, and exhibit
and Schedule to, such Operative Document;
(e) a reference to any statute, regulation, proclamation, ordinance or
law includes all statutes, regulations, proclamations, ordinances or laws
amending, supplementing, supplanting, varying, consolidating or replacing them,
and a reference to a statute includes all regulations, proclamations and
ordinances issued or otherwise applicable under that statute;
(f) a reference to a document includes any amendment or supplement to,
or replacement or novation of, that document;
(g) a reference to a party to a document includes any successor or
permitted assign of such person pursuant to the terms of the Operative
Documents; and
(h) references to "including" means including without limiting the
generality of any description preceding such term and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement
followed by or referable to an enumeration of specific matters to matters
similar to those specifically mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
II. Definitions.
"Accounts" shall have the meaning provided in Section 1 of the Security
Agreement.
"Acquired Plan" means any Plan which was originally established and
maintained by a Person other than the Lessee or an ERISA Affiliate and which
became, or hereafter becomes, a Plan as a result of an Acquisition by the Lessee
or any Subsidiary of the Lessee.
"Actual Knowledge" shall mean, as to any matter with respect to any
Person, the actual knowledge of such matter by a Responsible Officer of such
Person.
"Additional Costs" shall mean the amounts payable by the relevant
Lessee pursuant to Sections 7.4, 7.5, and 7.6 of the Participation Agreement.
"Additional Insureds" shall mean the Financing Parties.
"Additional Parts" shall have the meaning specified in Section 9.3 of
the Lease.
"Administrative Agent" shall mean First Security Trust Company of
Nevada, not in its individual capacity but solely as administrative agent.
"Administrator" shall have the meaning specified on Schedule 2 of the
LAPA.
"Affiliate" of any Person shall mean any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlling," "controlled by," and "under common control
with") as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise; provided (but without limiting the foregoing) that no
pledge of voting securities of any Person without the current right to exercise
voting rights with respect thereto shall by itself be deemed to confer control
over such Person upon the pledgee.
"After-Tax Basis" shall mean, with respect to any payment to be
received, actually or constructively, the amount of such payment increased so
that, after reduction by the amount of all taxes required to be paid by the
recipient calculated at the then maximum marginal rates generally applicable to
Persons of the same type as the recipients with respect to the receipt by the
recipient of such amounts (less any actual tax savings realized as a result of
the payment of the indemnified amount), such increased payment (as so reduced)
is equal to the payment otherwise required to be made.
"Agents" means collectively, the Administrative Agent and the
Administrator.
"Aircraft" means any Airframe together with its Related Engines,
whether or not such Related Engines are installed on such Airframe or any other
airframe and, all logs, manuals and data, and inspection, maintenance,
modification and overhaul records as are required to be maintained with respect
to such Aircraft pursuant to Section 8 of the Lease.
"Airframe" means (i) any airframe specified in a Lease Supplement, (ii)
any Airframe which may from time to time be substituted pursuant to the terms of
the Lease for any Airframe and (iii) any and all Parts which may from time to
time be incorporated or installed in or attached to such airframe or until
replaced, if not so incorporated or installed or attached to such airframe.
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"Applicable Laws and Regulations" shall mean as of any date all
applicable laws, rules, regulations (including Environmental Laws), statutes,
treaties, codes, ordinances, permits, certificates, orders and licenses of and
interpretations by, any Authority, and applicable judgments, decrees,
injunctions, writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent
jurisdiction, including those pertaining to health, safety or the environment
and those pertaining to the maintenance, use, ownership and leasing of the
Aircraft.
"Applicable Lending Office" mean, for each Participant, the office of
such Participant set forth as the Applicable Lending Office for such Participant
on Schedule III to the Participation Agreement, or such other office of such
Participant (or of an Affiliate of such Participant) as such Participant may
from time to time specify to the Administrative Agent and Lessee by written
notice as the office from which its Loans or Certificate Amounts, as applicable,
accruing Interest or Yield, as applicable, at the LIBO Rate (Reserve Adjusted)
are made available and maintained.
"Applicable Percentage" shall mean for LIBOR Loans, Certificate Amounts
and the Facility Fee the appropriate applicable percentages corresponding to the
senior unsecured credit rating for the Lessee as of the most recent Calculation
Date as shown below:
Pricing LIBOR Certificate Facility
Level Senior Unsecured Credit Rating Loan Amount Fee
------- -------------------------------------------------- ----- ----------- --------
I A or higher from S&P and A2 or higher from ▇▇▇▇▇'▇ 0.38% 2.00% 0.145%
II A- from S&P and A3 from ▇▇▇▇▇'▇ 0.445% 2.00% 0.155%
III BBB+ from S&P and Baa1 from ▇▇▇▇▇'▇ 0.60% 2.00% 0.175%
IV BBB from S&P and Baa2 from ▇▇▇▇▇'▇ 0.70% 2.00% 0.20%
V BBB - from S&P and Baa3 from ▇▇▇▇▇'▇ 0.975% 2.00% 0.30%
VI None of the above 1.00% 2.00% 0.40%
The Applicable Percentage for LIBOR Loans, Certificate Amounts and the
Facility Fee shall, in each case, be determined and adjusted monthly effective
on the first day of each Payment Period (each a "Calculation Date"); provided,
however, that (i) until the earlier to occur of (x) the date on which the credit
rating on Lessee's Long-Term Debt is established by S&P and ▇▇▇▇▇'▇ or (y)
September 15, 2000, the Applicable Percentage, in each case, shall be based on
Pricing Level III (as shown above) and, thereafter, the Pricing Level shall be
determined by the senior unsecured credit rating established by ▇▇▇▇▇'▇ and S&P
for Lessee's Long-Term Debt, and (ii) if, on any Calculation Date to occur on or
after September 15, 2000, Lessee's Long-Term Debt is not rated by ▇▇▇▇▇'▇ and
S&P (except as otherwise provided above), the Applicable Percentage, in each
case, from such Calculation Date shall be based on Pricing Level VI until such
time as Lessee's Long-Term Debt is so rated whereupon the Pricing Level shall be
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determined by the then current senior unsecured credit rating for Lessee's
Long-Term Debt as established by ▇▇▇▇▇'▇ and S&P. Except as provided in clause
(ii) above, each Applicable Percentage shall be effective from one Calculation
Date until the next Calculation Date. If the senior unsecured credit ratings of
the Lessee established by ▇▇▇▇▇'▇ and S&P fall within different Pricing Levels,
the Applicable Percentage shall be determined by reference to the lower Pricing
Level unless the credit ratings differ by more than one Pricing Level, in which
case the Applicable Percentage shall be determined by reference to the Pricing
Level one above the lowest which would otherwise apply.
"Appraisal" shall mean with respect to any Aircraft the appraisal
delivered pursuant to Sections 4.1(k) and 4.2(j) of the Participation Agreement.
"Appraiser" means Aviation Solutions Inc. or such other appraisal firm
reasonably acceptable to the Administrative Agent.
"Arrangement Fee" shall mean the arrangement fee payable to Arranger
pursuant to the Arrangement Fee Letter.
"Arrangement Fee Letter" means that certain letter agreement among Banc
of America Leasing & Capital, LLC, and Steelcase Inc., dated May 26, 2000.
"Arranger" shall mean Banc of America Leasing & Capital, LLC, a
Delaware limited liability company.
"Assets" shall have the meaning provided in Section 2 of the Security
Agreement.
"Assignment Agreement" means, with respect to any Lender, an assignment
agreement substantially in the form of Exhibit A to the Participation Agreement
and with respect to any Certificate Holder, an assignment agreement
substantially in the form of Exhibit B to the Trust Agreement.
"Authority" shall mean any applicable foreign, United States, federal,
state, county, municipal or other government or governmental, quasi-governmental
or regulatory authority, agency, board, body, commission, instrumentality, court
or tribunal, or any political subdivision of any thereof, or arbitrator or panel
of arbitrators.
"Available Commitment" means (i) with respect to each Certificate
Holder, (A) the amount of its Certificate Commitment, less (B) the aggregate of
the Certificate Amounts that it has Funded, and (ii) with respect to each
Lender, the amount of (A) its Loan Commitment, less (B) the aggregate principal
amount of the Loans that it has Funded.
"Bank of America" shall mean Bank of America, National Association, a
national banking association.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978.
"Base Term" shall have the meaning with respect to any Aircraft
provided in Section 3.1 of the Lease.
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"Base Term Commencement Date" shall have the meaning, with respect to
any Aircraft, set forth in the Lease Supplement with respect to such Aircraft.
"Base Term Expiration Date" shall mean with respect to any Aircraft,
the meaning set forth in the Lease Supplement with respect to such Aircraft.
"Basic Rent" shall mean with respect to any Aircraft for any Payment
Date, an amount equal to the sum of (A) the aggregate amount of principal and
accrued and unpaid interest payable on such date on the Loans, plus (B) the
aggregate amount of distributions of Certificate Amount and Yield payable on
such date on the Certificates, in each case with respect to such Aircraft all as
determined by the Administrative Agent, which determination shall be binding on
the Lessee absent manifest error.
"Benefitted Lender" shall have the meaning provided in Section 7.4 of
the Loan Agreement.
"Bills of Sale" shall mean the FAA Bills of Sale and the Warranty Bills
of Sale.
"Board of Directors" shall mean, with respect to a corporation, either
the board of directors or any duly authorized committee of that board of
directors which, pursuant to the by-laws of such corporation, has the same
authority as that board of directors as to the matter at issue.
"Borrower" shall have the meaning provided in the preamble to the Loan
Agreement.
"Break Funding Amount" shall have the meaning provided in Section 7.6
of the Participation Agreement.
"Business Day" means (i) each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in New York, New York, Salt Lake City,
Utah, Grand Rapids, Michigan, or San Francisco, California are generally
authorized or obligated, by law or executive order, to close and (ii) relative
to any determination of the LIBO Rate, any day which is a Business Day under
clause (i) and is also a day on which dealings in Dollars are carried on in the
London interbank eurodollar market.
"Calculation Date" shall have the meaning provided in the definition of
"Applicable Percentage".
"Certificate" shall have the meaning provided in Section 2.1 of the
Trust Agreement.
"Certificate Amount" shall mean with respect to any Aircraft, for any
Certificate and with respect to any Certificate Holder as of any date of
determination, the amount advanced by such Certificate Holder under such
Certificate pursuant to Section 2.2 of the Participation Agreement with respect
to such Aircraft, net of any distributions (other than distributions of Yield)
with respect thereto.
"Certificate Commitment" means the Commitment of each Certificate
Holder to make available Certificate Amounts on a Delivery Date in an aggregate
principal amount outstanding
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not to exceed the amount with respect to such Certificate Holder set forth on
Schedule I of the Participation Agreement applicable to it.
"Certificate Holder" shall have the meaning provided in the preamble to
the Trust Agreement.
"Certificate Register" shall have the meaning provided in Section
2.8(a) of the Trust Agreement.
"Certificate Trustee" or "Trustee" shall mean First Security Bank,
National Association, a national banking association, not in its individual
capacity but solely as trustee under the Trust Agreement.
"Certificate Trustee Lien" shall mean any Lien on or against the
Aircraft, the Lease, the Trust Estate or any payment of Rent (a) which results
from, or arises in connection with, any act of, or any Claim against Certificate
Trustee (in its individual capacity or in its trustee capacity), any Agent, or
any other Financing Party, in any case, unrelated to the transactions
contemplated by the Operative Documents, (b) which results from any Tax imposed
on Certificate Trustee (in its individual capacity or in its trustee capacity),
any Agent, or any other Financing Party, except any Tax for which Lessee is
obligated to indemnify such Persons pursuant to any Operative Document or (c)
which results from any act or omission of the Certificate Trustee (in its
individual or in its trustee capacity), any Agent, or any other Financing Party
that is in breach of such Person's covenants or agreements under the Operative
Documents.
"Certificates" shall mean those certain certificates issued to the
Certificate Holders pursuant to the Trust Agreement, substantially in the form
of Exhibit A thereto, and any and all Certificates issued in replacement or
exchange therefor.
"Chattel Paper" shall have the meaning provided in Section 1 of the
Security Agreement.
"Claims" shall mean liabilities, obligations, damages, losses,
penalties, fines, claims, actions, suits, judgments, settlements, charges,
costs, fees, expenses and disbursements (including, without limitation, legal
fees and expenses and costs of investigation which, in the case of counsel or
investigators retained by an Indemnitee, shall be reasonable) of any kind and
nature whatsoever.
"Closing Date" shall mean May 26, 2000.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral" shall mean, as applicable, the property and rights and
interests defined as "Collateral" in the Security Agreement.
"Commercial Paper" means short term debt obligations of the CP Lender
issued to fund its portion of the making or holding its portion of the Loans.
"Commitment" means (i) as to any Lender, its Loan Commitment, and (ii)
as to any Certificate Holder, its Certificate Commitment.
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"Commitment Percentage" means, as to any Participant, the percentage
set forth opposite such Participant's name under the heading "Commitment
Percentage" on Schedule I, with respect to the Certificate Holders, or Schedule
II, with respect to the Lenders, to the Participation Agreement.
"Compliance Certificate" shall have the meaning provided thereto in the
Credit Agreement.
"Conduit Fee Letter" shall mean that certain letter agreement dated as
of the Closing Date among the Lessee and Bank of America, as Administrator, for
the CP Lender.
"CP Lender" means Hatteras Funding Corporation, in its capacity as CP
Lender under the Loan Agreement, and any other Eligible CP Lender which becomes
a CP Lender by virtue of an assignment from any CP Lender pursuant to Section
6.3 of the Participation Agreement.
"CP Loans" is defined in Section 2.1 of the Loan Agreement.
"CP Note" is defined in Section 2.3(a) of the Loan Agreement.
"CP Rate" shall mean, for any Payment Period for any CP Loans, the per
annum rate equivalent to the "daily weighted average rate" (as defined below) of
Commercial Paper outstanding on any day during such Payment Period; such rate to
be reported by CP Lender to Lessee on a monthly basis in sufficient detail;
provided, however, that if any component of such rate is a discount rate, in
calculating the "CP Rate" for such Payment Period, the CP Lender shall for such
component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per annum. As used in this definition, the CP
Lender's "daily weighted average rate" shall consist of (x) the daily weighted
average interest rate of Commercial Paper outstanding on any day paid to
purchasers of the Commercial Paper, together with the Dealer Fee, and (y) any
incremental carrying costs incurred with respect to Commercial Paper maturing on
dates other than those on which corresponding funds are received by the CP
Lender (it being understood and agreed that the amount in clause (y) shall not
include additional costs incurred as a result of drawing on the LAPA prior to
the maturity of Commercial Paper to be paid with the proceeds of such drawing).
"Credit Agreement" means that certain Amended and Restated Credit
Agreement (Short Term Facility) dated as of May 20, 1999 between Lessee and the
banks named therein with Citicorp USA, Inc. as administrative agent.
"Dealer Fee" is defined in the Conduit Fee Letter.
"Delivery Date" shall mean with respect to any Aircraft, the date set
forth on the Lease Supplement with respect to such Aircraft.
"Documents" shall have the meaning provided in Section 1 of the
Security Agreement.
"Eligible Assignee" means any bank or financial institution with a debt
rating of at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇; provided, however, that any
such Person above shall also satisfy the provisions of the LAPA if it is
receiving an assignment or transfer from a Facility Lender thereunder.
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"Eligible CP Lender" means a special purpose, bankruptcy remote company
which is administered by Bank of America, or by an Affiliate thereof, and which
has activities generally similar to the original CP Lender.
"Engine Manufacturer" means with respect to any Related Engine, the
original manufacturer of such engine and any successor entity thereto.
"Environmental Claims" means all written claims, however asserted, by
any Authority or other Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release of injury to the environment.
"Environmental Law" means any and all statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions of any
federal, state or local governmental authority within the United States or any
State or territory thereof and which relate to the environment or the release of
any materials into the environment.
"Equipment Cost" shall mean, with respect to any Aircraft, the cost
allocable to such Aircraft and set forth on the Lease Supplement with respect to
such Aircraft and, collectively, the aggregate sum of such costs.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974
and the regulations promulgated thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
ERISA is a member of the Lessee's controlled group, or under common control with
the Lessee, within the meaning of Section 414 of the Code and the regulations
promulgated and rulings issued thereunder.
"ERISA Event" means (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Pension Plan of a notice of intent to terminate such
Pension Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii)
the cessation of operations at a facility by the Lessee or an ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (iv) the withdrawal by
the Lessee or an ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (v) the failure by the Lessee or any ERISA Affiliate to make a payment
to a Pension Plan required under Section 302(f)(1) of ERISA, which Section
imposes a lien for failure to make required payments; (vi) the adoption of an
amendment to a Pension Plan requiring the provision of security to such Pension
Plan, pursuant to Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Pension Plan, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition which, in the reasonable judgment of
the Lessee, might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, a Pension Plan.
"Event of Default" means either or both, as the context may require, of
a Loan Event of Default or a Lease Event of Default.
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"Event of Loss" with respect to any Aircraft, Airframe or Related
Engine means any of the following events whether existing at the expiration or
earlier termination of the Lease: (i) loss of such property or of the use
thereof for sixty (60) consecutive days or for a period extending beyond the
Lease Term of such property, in each case due to theft or disappearance during
the Lease Term of such property; (ii) destruction, damage beyond repair, or
rendition of any such property permanently unfit for normal use for any reason
whatsoever; (iii) any damage to any such property which results in an insurance
settlement with respect to such property on the basis of a total loss; (iv) the
condemnation, confiscation, seizure, or requisition of title to any such
property by any governmental authority under the power of eminent domain or
otherwise or the requisition of use of any such property for a period in excess
of 180 days or which extends beyond the remainder of the Lease Term of such
property; or (v) as a result of any law, rule, regulation, order or other action
by the FAA (or other similar governmental body having jurisdiction over such
property), use of such type of property in the normal course of business of air
transportation shall have been prohibited for a period of 180 days (or, if
shorter, the remainder of the Lease Term of such property). An Event of Loss
with respect to an Aircraft shall be deemed to have occurred if an Event of Loss
occurs with respect to the Related Airframe unless such Airframe is replaced
pursuant to the provisions of Section 9 of the Lease.
"Excluded Amounts" shall mean:
(a) all indemnity payments and expenses to which Certificate
Trustee, each Agent in its individual capacity or any Participant (or
any of their respective successors, assigns, agents, officers,
directors or employees) is entitled pursuant to the Operative
Documents;
(b) any amounts payable under any Operative Documents to
reimburse Certificate Trustee, each Agent or any Participant (including
the reasonable expenses incurred in connection with any such payment)
for performing or complying with any of the obligations of Lessee under
and as permitted by any Operative Document;
(c) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies payable to
Certificate Trustee, any Agent in its individual capacity or any
Participant (or their respective successors, assigns, agents, officers,
directors or employees);
(d) any insurance proceeds under policies maintained by
Certificate Trustee, any Agent or any Participant and not required to
be maintained by Lessee for the benefit of Lessee under the Lease;
(e) any payments of interest or yield on payments referred to
in clauses (a) through (d) above.
"Expiration Date" shall mean for any Aircraft the last day of the Lease
Term of such Aircraft, or any other date on which the Lease is terminated with
respect to such Aircraft.
"FAA" means the Federal Aviation Administration, or any Person,
governmental department, bureau, commission or agency succeeding to the
functions thereof.
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"FAA ▇▇▇▇ of Sale" shall mean each ▇▇▇▇ of sale on FAA form 8050-2
issued in favor of the Lessor from time to time with respect to an Aircraft.
"Facility Amount" shall mean an aggregate amount equal to the sum of
(i) the Commitments referenced on Schedule I to the Participation Agreement plus
(ii) the product obtained by multiplying 102% times the aggregate Commitments of
the Facility Lenders set forth on Schedule II to the Participation Agreement.
"Facility Fee" is defined in Section 10.1 of the Participation
Agreement.
"Facility Lenders" means collectively, the various financial
institutions that are or may from time to time become parties to the Loan
Agreement as Facility Lenders.
"Facility Loan" is defined in Section 2.1(b) of the Loan Agreement.
"Facility Note" is defined in Section 2.3(b) of the Loan Agreement.
"Fair Market Value" shall mean with respect to any Aircraft as of the
date of the determination, the fair market value (which in any event shall not
be less than zero) as determined by an independent appraiser chosen by
Certificate Trustee (at the direction of the Required Participants) and
reasonably acceptable to the Lessee that would be obtained in an arm's-length
transaction between an informed and willing buyer (other than a buyer currently
in possession) and an informed and willing seller, under no compulsion to buy or
sell, and neither of which is related to Certificate Trustee, the Administrative
Agent or the Lessee or any Affiliate thereof, for the purchase of such Aircraft.
Such fair market value shall be calculated as the value for the use of such
Aircraft, assuming, in the determination of such fair market value, that such
Aircraft is in the condition and repair required to be maintained by the terms
of the Lease (unless such fair market value is being determined for purposes of
the Appraisal to be delivered prior to the Closing Date or Section 7.9 of the
Participation Agreement, in which case this assumption shall not be made).
"Federal Aviation Act" means Part A of Subtitle VII of Title 49 of the
United States Code.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fees" shall mean, collectively, the Arrangement Fee, the Program Fee,
the Dealer Fee, the Non-Use Fee, the Facility Fee and the Upfront Fee.
"Financing Parties" shall mean the Certificate Trustee, the Trust
Company, the Agents, the Arranger, the CP Lender, each Certificate Holder and
each Facility Lender.
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"Financing Statements" shall mean all such UCC-1 Financing Statements
required by the Administrative Agent or Certificate Trustee to be executed by
the Lessee or Certificate Trustee in connection with the perfection of any
security interests granted by Certificate Trustee or Lessee, as the case may be,
under the Operative Documents.
"Fixed Basic Rent" shall mean, for any Payment Date and with respect to
any Aircraft, the amount set forth opposite such Payment Date under the heading
"Fixed Basic Rent" on Schedule 2 to the Lease Supplement of such Aircraft.
"First Security Trust" means First Security Trust Company of Nevada, a
trust company organized under the laws of the State of Nevada, in its individual
capacity.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"Fund", "Funded" or "Funding" shall mean each funding by a Participant
of a portion of the principal under its Note or a portion of its Certificate
Amount (as the case may be) constituting a portion of any payment of Equipment
Cost as described in Section 2.2 of the Participation Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principals Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession), which
are applicable to the circumstances as of the date of determination.
"General Intangibles" shall have the meaning provided in Section 1 of
the Security Agreement.
"Governmental Action" shall mean all applicable permits,
authorizations, registrations, consents, approvals, waivers, exceptions,
variances, orders, judgments, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any Authority,
or required by any Applicable Laws and Regulations, and shall include, without
limitation, all citing, environmental permits and operating permits and licenses
that are required for the use, and operation of any Aircraft.
"Government Requirement" means any law, statute, code, ordinance,
order, rule, regulation, guideline, judgment, decree, injunction, franchise,
permit, certificate, license, authorization or other direction or requirement
(including, without limitation, any of the foregoing that relate to
environmental standards or controls, energy regulations and occupational, safety
and health standards or controls) of any Authority.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by that
Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by that Person to an obligee of any
other Person with respect to the payment or performance of an obligation by, or
the financial condition of, such other Person, whether direct,
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indirect or contingent, including any purchase or repurchase agreement covering
such obligation or any collateral security therefor, any agreement to provide
funds (by means of loans, capital contributions or otherwise) to such other
Person, any agreement to support the solvency or level of any balance sheet item
of such other Person or any "keep-well" or other arrangement of whatever nature
given for the purpose of assuring or holding harmless such obligee against loss
with respect to any obligation of such other Person; provided, however, that the
term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
covered by such Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"Highest Lawful Rate" shall have the meaning provided in Section
2.10(b) of the Participation Agreement.
"Improvement" shall have the meaning specified in Section 9.3 of the
Lease.
"Indebtedness" of any Person shall mean, without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of property
or services (other than trade payables entered into and accrued expenses arising
in the ordinary course of business on ordinary terms); (c) all non-contingent
reimbursement or payment obligations with respect to surety instruments; (d) all
obligations of such Person evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations of such Person with respect to capital leases; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts receivable and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness; and (h) all Guaranty
Obligations of such Person in respect of indebtedness or obligations of others
of the kinds referred to in clauses (a) through (g) above.
"Indemnitee" shall mean each Participant, the Certificate Trustee (in
its individual capacity and as trustee), each Agent (in its individual capacity
and as Agent or Administrator), the Arranger, the Liquidity Agent (in its
individual capacity and as Liquidity Agent), any additional, separate or
co-trustee or co-agent appointed in accordance with the terms of the Trust
Agreement or the Participation Agreement, and the respective contractors,
servants, employees, officers, directors, shareholders, partners, participants,
representatives and agents of each of the foregoing Persons; provided, however,
that in no event shall Lessee or its Affiliates be an Indemnitee.
12
"Insolvency Event" shall mean the occurrence of any one or more of the
following events with respect to any Person:
(a) Such Person: (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its
debts as they become due; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(b) Any involuntary Insolvency Proceeding is commenced or
filed against such Person, or any writ, judgment, warrant of
attachment, warrant of execution or similar process is issued or levied
against a substantial part of such Person's properties, and such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, warrant of execution or similar process shall
not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; such Person admits the material
allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in
respect of such Person in any Insolvency Proceeding; or such Person
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor) or
other similar Person for itself or a substantial portion of its
property or business.
"Insolvency Proceeding" shall mean, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or other
Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors or (b) any general
assignment for the benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of such Person's creditors
generally or any substantial portion of such creditors; in each case undertaken
under any U.S. Federal, State or foreign law, including the Bankruptcy Code.
"Institutional Investor" shall mean (a) any Person which is an original
Participant, (b) any Person holding more than 5% of the aggregate principal
amount of the Notes and Certificates then outstanding, and (c) any bank, trust
company, savings and loan association or other financial institution, any
pension plan, any investment company, any insurance company, any broker or
dealer, or any other similar financial institution or entity, regardless of
legal form.
"Instruments" shall have the meaning provided in Section 1 of the
Security Agreement.
"Interest" means the interest accruing on the Loans as computed and
payable in accordance with the terms of the Loan Agreement (including, without
limitation, in accordance with Section 2.6 of the Loan Agreement).
"Investment Property" shall have the meaning provided in Section 1 of
the Security Agreement.
"Investor's Letter" shall mean with respect to any Lender, an
Investor's Letter substantially in the form of Schedule III to Exhibit A of the
Participation Agreement and with respect to any Certificate Holder, an
Investor's Letter substantially in the form of Schedule II to Exhibit B of the
Trust Agreement.
13
"LAPA" means that certain Liquidity Asset Purchase Agreement, dated May
26, 2000, by and among Hatteras Funding Corporation, a Delaware corporation,
each bank listed on the signature page thereto under the caption "Liquidity
Banks" and Bank of America, as Liquidity Agent.
"Lease" shall mean that certain Master Aircraft Lease Agreement
(Steelcase Trust No. 2000-1) dated as of May 26, 2000, among Certificate Trustee
as Lessor and Lessee, together with any Lease Supplements thereto.
"Lease Balance" shall mean, with respect to any Aircraft as of any date
of determination, an amount equal to the aggregate sum of the outstanding
principal amount of the Loans of all of the Lenders and the outstanding
Certificate Amounts of all of the Certificate Holders in each case Funded with
respect to such Aircraft, as determined by the Administrative Agent, which
determination shall be binding upon the Lessee absent manifest error.
"Lease Collateral" shall mean all of the Lessee's right, title and
interest in (i) the Aircraft, (ii) all purchase agreements relating to the
Aircraft, (iii) all insurance coverages required pursuant to Section 11.2 of the
Lease as such coverage is applied the Aircraft, (iv) all warranties, indemnitees
and contract rights against vendors and manufacturers, in each case as such
apply to the Aircraft and (v) the proceeds of any of the foregoing.
"Lease Default" shall mean any event, condition or failure which, with
notice or lapse of time or both, would become a Lease Event of Default.
"Lease Event of Default" shall mean any event condition or failure
designated as a "Lease Event of Default" in Section 13 of the Lease.
"Lease Supplement" shall mean a Lease Supplement substantially in the
form of Exhibit A to the Lease together with all attachments and schedules
thereto.
"Lease Term" shall have the meaning with respect to any Aircraft
provided in Section 3.1 of the Lease.
"Lenders" shall mean collectively, the CP Lender and each Facility
Lender.
"Lessee" shall have the meaning provided in Section 1 of the Lease.
"Lessor" shall mean Certificate Trustee.
"LIBO Rate" means with respect to any Payment Period at any time, the
applicable London interbank offered rate for deposits in U.S. dollars appearing
on Telerate Page 3750 as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Payment Period, and having a maturity approximately
equal to such Payment Period; or if no London interbank offered rate of such
maturity then appears on Telerate Page 3750, then the rate equal to the London
interbank offered rate for deposits in U.S. dollars maturing immediately before
or immediately after such maturity, whichever is higher, as determined by the
Administrative Agent from Telerate Page 3750; or if Telerate Page 3750 is not
available, the applicable LIBO Rate for the relevant Payment Period shall be the
rate determined by the Administrative Agent to be the arithmetic average of the
rates at which Bank of America offers to place deposits in U.S. dollars
14
with first-class banks in the London interbank market at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of such Payment
Period, in the approximate amount of Bank of America's (and with respect to the
Certificate Amounts, its Affiliate's), relevant portion of the aggregate
outstanding principal amount of the Notes and Certificate Amounts and having a
maturity approximately equal to such Payment Period.
"LIBOR Loan" shall mean each Loan bearing interest based on the LIBO
Rate.
"LIBOR Office" shall mean initially, the funding office of each
Participant designated as such in Schedule III to the Participation Agreement;
and thereafter, such other office of such Participant, if any, which shall be
making or maintaining such Participant's investment in Notes or the
Certificates, as applicable.
"Lien" shall mean any lien (statutory or other), mortgage, deed of
trust, encumbrance, pledge, charge, lease, easement, servitude, right of others
or security interest of any kind, including any thereof arising under any
conditional sale or other title retention agreement.
"Liquidity Agent" is defined in Schedule 2 of the LAPA.
"Liquidity Banks" means the several financial institutions named as
such from time to time and party to the LAPA.
"Loan Agreement" shall mean the Loan Agreement (Steelcase Trust No.
2000-1) dated as of May 26, 2000, among Certificate Trustee, Administrative
Agent and the Lenders.
"Loan Commitment" means the Commitment of each Lender to make Loans to
the Borrower on a Delivery Date in an aggregate principal amount outstanding not
to exceed the amount with respect to such Lender set forth on Schedule II to the
Participation Agreement applicable to it.
"Loan Documents" shall mean the Loan Agreement, the Security Agreement
and the Notes.
"Loan Event of Default" shall mean any event, condition or failure
designated as a "Loan Event of Default" in Section 6.1 of the Loan Agreement.
"Loans" means collectively, the CP Loans and the Facility Loans, and
with respect to any Aircraft, the CP Loans and the Facility Loans, in each case
Funded by the applicable Lenders with respect to such Aircraft.
"Long-Term Debt" means senior, unsecured, long-term debt securities of
the Lessee.
"Loss Payment Date" shall have the meaning provided thereto in Section
10.2(i) of the Lease.
"Maintenance Program" means with respect to any Aircraft an
FAA-approved maintenance program for such Aircraft.
15
"Manufacturer" means with respect to any Aircraft, the original
manufacturer of such Aircraft, and any successor entity thereto.
"Margin Stock" has the meaning assigned to that term in Regulation U
promulgated by the F.R.S. Board.
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, condition (financial or otherwise), results of operations,
or prospects of the Lessee and its Subsidiaries taken as a whole, (ii) the
ability of the Lessee to pay and perform its obligations under the Operative
Documents to which it is a party, (iii) the validity or enforceability of any of
the Operative Documents or the rights or remedies of the Agent or the
Participants thereunder.
"Material Subsidiary" means any Subsidiary of the Lessee having total
assets in excess of $20,000,000.
"Maturity Date" shall mean with respect to any Loan or Certificate
Amount the earlier of (i) the Base Term Expiration Date of the Aircraft to which
it relates unless such date is extended in accordance with the express terms of
the Operative Documents, or (ii) the Expiration Date of the Aircraft to which it
relates.
"Maximum Lessor Risk Amount" shall mean with respect to any Aircraft,
an amount equal to the difference between the Lease Balance of such Aircraft
less the Sale Recourse Amount for such Aircraft.
"Maximum Commitment Amount" shall mean $53,000,000.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Lessee or any ERISA Affiliate of the Lessee is
making, or is obligated to make, contributions or has Withdrawal Liability.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Lessee or an ERISA Affiliate and at least one Person other than the Lessee and
its ERISA Affiliates or (ii) was so maintained and in respect of which the
Lessee or an ERISA Affiliate could have liability under Section 4063, 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"New Facility" have the meaning set forth in Section 5.1(o) of the
Participation Agreement.
"Non-Use Fee" is defined in the Conduit Fee Letter.
"Notes" means collectively, the CP Note and the Facility Note.
"Notice of Delivery" shall have the meaning provided thereto in Section
2.3(b) of the Participation Agreement.
"Obligations" shall have the meaning provided in Section 1 of the
Security Agreement.
16
"Officer's Certificate" of a Person shall mean a certificate signed by
any Responsible Officer in respect of such Person.
"Operative Documents" means the following:
(a) the Participation Agreement;
(b) the Lease;
(c) the Loan Agreement;
(d) the Notes;
(e) the Certificates;
(f) the Security Agreement;
(g) the LAPA;
(h) the Trust Agreement;
(i) the Conduit Fee Letter;
(j) the Arrangement Fee Letter; and
(k) the Bills of Sale.
"Organization Documents" means (i) for any corporation, the certificate
of incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation, (ii) for any
partnership or joint venture, the partnership or joint venture agreement and any
other organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating agreement
and any other organizational document of such limited liability company, (iv)
for any trust, the declaration of trust, the trust agreement and any other
organizational document of such trust and (v) for any other entity, the document
or agreement pursuant to which such entity was formed and any other
organizational document of such entity.
"Overall Transaction" shall mean all the transactions and activities
referred to in or contemplated by the Operative Documents.
"Overdue Rate" shall mean the lesser of (a) the highest interest rate
permitted by Applicable Laws and Regulations and (b) an interest rate per annum
equal to, in the case of the Notes, the rate of interest otherwise payable with
respect thereto plus 2% and, in the case of the Certificates, the Yield Rate
plus 2%.
"Participants" shall mean the Certificate Holders, the CP Lender and
the Facility Lenders.
"Participation" shall have the meaning provided in Section 6.4 of the
Participation Agreement.
"Participation Agreement" shall mean the Participation Agreement
(Steelcase Trust No. 2000-1) dated as of May 26, 2000, among Lessee, Certificate
Trustee, the Agents, CP Lender, the Certificate Holders, the Facility Lenders
and the Administrator.
"Parts" shall mean all appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
(other than complete Related Engines or engines) which may from time to time be
incorporated or installed in or attached to
17
any Airframe or Related Engine or until replaced, if not so incorporated or
installed, on such Airframe or Related Engine.
"Payment Date" shall mean the twenty-sixth (26th) day of each month (or
if such day is not a Business Day, the immediately succeeding Business Day).
"Payment Default" shall mean a Lease Event of Default as described at
Section 13(a) of the Lease.
"Payment Office" means with respect to any Financing Party, the office
of such party identified on Schedule III to the Participation Agreement as its
Payment Office.
"Payment Period" shall mean with respect to any Loan or Certificate
Amount (i) for any Loan bearing interest by reference to the CP Rate, the
calendar month immediately preceding a Payment Date, or a portion of such month
during which such Loan bears interest by reference to the CP Rate, with the
initial such Payment Period commencing on the date such Loan was Funded and (ii)
for any Loan or Certificate Amount bearing Interest or Yield by reference to
either the LIBO Rate or the Reference Rate, all or any portion of the period
from and including a Payment Date to but excluding the next succeeding Payment
Date during which such Loan or Certificate bears interest by reference to such
rate, with the initial such Payment Period commencing on the date such Loan or
Certificate Amount was Funded.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation.
"Pension Plan" means a Single Employer Plan or a Multiple Employer
Plan, or both.
"Percentage Interests" is defined in Schedule 2 of the LAPA.
"Permitted Investments" shall mean (i) direct obligations of the United
States of America and agencies thereof for which the full faith and credit of
the United States is pledged, (ii) obligations fully guaranteed by the United
States of America, (iii) certificates of deposit issued by, or bankers
acceptances of, or time deposits with, any bank, trust company or national
banking association incorporated or doing business under the Laws of the United
States of America or one of the States thereof having combined capital and
surplus and retained earnings of at least $500,000,000 (including without
limitation any Lender and the Certificate Trustee if such conditions are met)
and having a rating assigned to the long-term unsecured debt of such
institutions by S&P and Moody's at least equal to AA and Aa2, respectively, (iv)
commercial paper of companies, banks, trust companies or national banking
associations incorporated or doing business under the Laws of the United States
of America or one of the States thereof and in each case having a rating
assigned to such commercial paper by S&P or Moody's (or, if neither such
organization shall rate such commercial paper at any time, by any nationally
recognized rating organization in the United States of America) equal to the
highest rating assigned by such organization, and (v) a money market fund
registered under the Investment Company Act of 1940, as amended, the portfolio
of which is limited to the investments described in clauses (i) through (iv)
above; provided that if all of the above investments are unavailable, the entire
amount to be invested may be used to purchase federal funds from an entity
described in (iii) above; and provided further that no investment shall be
eligible as a "Permitted Investment" unless the final maturity or date of return
of such investment is 90 days or less from the date of purchase thereof.
18
"Permitted Liens" shall mean (a) the respective rights and interests of
Lessee and the Financing Parties, as provided in the Operative Documents, (b)
Certificate Trustee Liens, (c) Liens for Taxes either not yet due or being
contested in good faith and by appropriate proceedings diligently conducted so
long as (i) such proceedings shall not involve any material risk of the sale,
forfeiture or loss of any Aircraft, the Trust Estate, title thereto or any
interest therein and shall not interfere in any material respect with the use or
disposition of any Aircraft, the Trust Estate or the payment of Rent and (ii)
any reserve or other appropriate provision required by GAAP shall have been made
in respect of the Lien, (d) materialmen's, mechanics', workers', repairmen's,
employees' or other like Liens arising in the ordinary course of business for
amounts either not yet due or being contested in good faith and by appropriate
proceedings so long as (i) such proceedings shall not involve any material risk
of the sale, forfeiture or loss of any Aircraft, the Trust Estate, title thereto
or any interest therein and shall not materially interfere with the use or
disposition of any Aircraft, the Trust Estate, or meaningfully interfere with
the payment of Rent and (ii) any reserve or other appropriate provision required
by GAAP shall have been made in respect of the Lien, and (e) Liens arising after
the Closing Date out of judgments or awards not otherwise constituting a Lease
Event of Default and with respect to which at the time an appeal or proceeding
for review is being prosecuted in good faith and either (x) have been reserved
for to the extent required by GAAP, or (y) the enforcement of such Lien has been
stayed pending such appeal or review and (f) salvage or similar rights of
insurers under insurance policies maintained in accordance with the Operative
Documents.
"Person" shall mean an individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or Authority.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Lessee or any member of the controlled group may have any
liability.
"Program Fee" is defined in the Conduit Fee Letter.
"Purchase Amount" shall mean, as of any date of determination, an
amount equal to the sum of (a) the outstanding Lease Balance, plus (b) all
accrued but unpaid Interest and Yield, plus (c) Break Funding Amount, if any,
payable by the Borrower under the Operative Documents, plus (d) all other sums
then due and payable under the Operative Documents by Lessee, including without
limitation all Rent and any amounts due and owing pursuant to Section 7 of the
Participation Agreement.
"Purchase Option" shall have the meaning provided in Section 22.1(b) of
the Lease.
"Rating Agency" is defined in the LAPA.
"Reference Rate" shall have the meaning provided in Section 7.4(d) of
the Participation Agreement.
"Regulations" shall mean the income tax regulations promulgated from
time to time under and pursuant to the Code.
19
"Related Airframe" means with respect to any Aircraft or Related
Engine, the Airframe relating to such Aircraft or Related Engine as set forth on
the Lease Supplement with respect to such Aircraft or Related Engine.
"Related Engine" means (i) each engine set forth on the Lease
Supplement with respect to any Airframe (which Lease Supplement shall identify
the Airframe to which such Related Engine relates) whether or not from time to
time installed on an Airframe or installed on any other airframe (except as
otherwise provided in the Lease), (ii) any engine which may from time to time be
substituted, pursuant to the terms of the Lease, for any Related Engine, (iii)
all Parts so long as the same shall be installed on, attached to or made a part
of such Related Engine (so long as title thereto is, now, or hereafter shall be,
vested in Lessor) and (iv) the engine stand, if any, with respect to such
Related Engine.
"Renewal Option" shall have the meaning with respect to any Aircraft
set forth in Section 22.1(a) of the Lease.
"Renewal Term" shall have the meaning with respect to any Aircraft
provided in Section 3.1 of the Lease.
"Rent" shall mean Basic Rent and Supplemental Rent, collectively.
"Replacement Airframe" means an airframe of the same make and same or
improved model and having a value, utility and remaining useful life at least
equal to and being in as good operating condition and state of maintenance as
the Airframe so replaced immediately prior to the occurrence of such Event of
Loss (assuming such Airframe was in a condition and repair in which it is
required to be maintained by the terms of the Lease), and which shall have
become subject to the Lease pursuant to Section 10.2 or 21.3 thereof.
"Required Alteration" shall have the meaning specified in Section 9.3
of the Lease.
"Required Certificate Holders" shall mean, as of the date of the
determination, Certificate Holders having unpaid Certificate Amounts equal to
more than 66 2/3% of the aggregate unpaid Certificate Amounts.
"Required Facility Lenders" shall mean as of a particular date of
determination, with respect to any action or decision of the Facility Lenders,
the Facility Lenders holding or having an obligation to purchase or assume more
than 66 2/3% of the right, title and interest in and to and obligations under
the Notes from the CP Lender pursuant to the terms of the LAPA.
"Required Participants" shall mean, as of the date of the
determination, Lenders and Certificate Holders having aggregate investments in
the Overall Transaction (as measured by the outstanding principal amount of the
Notes then outstanding and the Certificate Amounts then outstanding) equal to
more than 66 2/3% of the aggregate total of all such investments.
"Responsible Officer" of any Person shall mean the Chairman or Vice
Chairman of the Board of Directors, the Chairman or Vice Chairman of the
Executive Committee of the Board of Directors, the President, any Senior Vice
President or Executive Vice President, any Vice President, the Secretary, the
Treasurer, any Assistant Treasurer or the Controller.
20
"Return Location" is defined in Section 6.1 of the Lease.
"S&P" shall mean Standard & Poor's Ratings Service, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale Option" shall have the meaning provided in Section 22.1(c) of the
Lease.
"Sale Proceeds" shall mean the gross sale proceeds from the sale of the
applicable Aircraft pursuant to Section 14 or 23 of the Lease; which shall be an
amount not less than the amount bid by the purchaser or purchasers of such
Aircraft whose bid is accepted pursuant to Section 23 of the Lease.
"Sale Recourse Amount" shall have the meaning as of any date with
respect to any Aircraft set forth in the Lease Supplement with respect to such
Aircraft on such date.
"SEC" shall mean the United States Securities and Exchange Commission.
"Secured Instrument" shall have the meaning provided in Section 2(i) of
the Security Agreement.
"Secured Party" shall have the meaning provided in the preamble of the
Security Agreement.
"Securities Act" shall mean the Securities Act of 1933.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934.
"Security Agreement" shall mean the Security Agreement (Steelcase Trust
No. 2000-1) dated as of May 26, 2000, among the Certificate Trustee, Lessee and
the Administrative Agent, as agent for the Certificate Holders and the Lenders
together with any Security Agreement Supplements thereto.
"Security Agreement Supplement" means a Security Agreement Supplement
substantially in the form of Exhibit A to the Security Agreement.
"Security Documents" means collectively the Security Agreement, the
Lease and the Financing Statements.
"Seller" means with respect to any Aircraft the Person providing the
Certificate Trustee with Bills of Sale with respect to such Aircraft.
"Settlement Actions" shall have the meaning provided in Section 6.2 of
the Trust Agreement.
"Significant Default" means any Lease Default under Section 13(a),
13(d) or 13(f) of the Lease.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Lessee or any ERISA Affiliate and no Person other than the Lessee and its ERISA
Affiliates or (ii) was so maintained and in respect of
21
which the Lessee or an ERISA Affiliate could have liability under Section 4062
or 4069 of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of a Person shall mean, as of any time of determination,
any corporation, association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of the total voting
stock, membership interests or other equity interests is owned or controlled,
directly or indirectly, by such Person, or one or more of the Subsidiaries of
such Person, or a combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a Subsidiary of the
Lessee.
"Supplemental Rent" shall mean any and all amounts, liabilities and
obligations other than Basic Rent which Lessee assumes or agrees or is otherwise
obligated to pay under the Lease or any other Operative Document (whether or not
designated as Supplemental Rent) to Certificate Trustee, the Administrative
Agent, Arranger, Liquidity Agent, any Participant, or any other Person,
including, without limitation, Lease Balance, Purchase Amount, Break Funding
Amounts, Additional Costs, Sale Recourse Amount, Fees and indemnities and
damages for breach of any covenants, representations, warranties or agreements.
"Taxes" and "Tax" shall mean any and all fees (including, without
limitation, documentation, recording, license and registration fees), taxes
(including, without limitation, income (whether net, gross or adjusted gross),
gross receipts, sales, rental, use, turnover, value-added, property, excise and
stamp taxes), levies, imposts, duties, charges, assessments or withholdings of
any nature whatsoever, together with any penalties, fines or interest thereon or
additions thereto.
"Transaction Costs" shall mean reasonable out of pocket transaction
costs and expenses incurred by the Arranger, the Certificate Trustee and the
Agents in connection with the consummation of the transactions contemplated by
the Operative Documents, and the preparation, negotiation, execution and
delivery of the Operative Documents, including (1) the reasonable fees, expenses
and disbursements of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, document counsel, Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the CP Lender, Daugherty, Fowler, Peregrin
& ▇▇▇▇▇▇, special FAA counsel and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Lessee; (2) the initial and ongoing fees and reasonable expenses of the
Certificate Trustee (other than the initial and ongoing agreed upon fees of the
Certificate Trustee), and the Agents (other than the initial and ongoing agreed
upon fees of the Administrative Agent) and their special counsel; (3) all
appraisal fees and reasonable appraisal expenses with respect to the Aircraft;
and (4) all recording and filing fees incurred in connection with the filing of
all Financing Statements and any other documents, with respect to the Aircraft
or the Security Documents.
"Trust" shall mean the trust created by the Trust Agreement.
"Trust Agreement" shall mean the Trust Agreement (Steelcase Trust No.
2000-1), dated as of May 26, 2000, among the Trust Company and the Certificate
Holders.
"Trust Company" shall mean First Security Bank, National Association, a
national banking association, in its individual capacity.
"Trust Estate" shall have the meaning provided in Section 1.2(c) of the
Trust Agreement.
22
"UCC" shall mean the Uniform Commercial Code of New York, or any other
applicable jurisdiction.
"Unfunded Liabilities" means the aggregate unfunded value of
accumulated benefits under all Single Employer Plans, all determined in
accordance with Agreement Accounting Principles as of the then most recent
valuation date for such Plans.
"Upfront Fee" shall have the meaning provided in Section 10.2 of the
Participation Agreement.
"Warranty ▇▇▇▇ of Sale" each warranty ▇▇▇▇ of sale issued in favor of
the Lessor from time to time with respect to an Aircraft, in each case in form
and substance satisfactory to the Lessor and each other Financing Party.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
"Yield" shall mean with respect to each Payment Period (a) the Yield
Rate for such Payment Period multiplied by (b) the applicable Certificate Amount
for which such Yield is being calculated.
"Yield Rate" shall mean, with respect to each Payment Period, the
applicable rate per annum at which Yield shall accrue and be payable from time
to time on the Certificate Amounts, which rate shall be the rate per annum equal
to the sum of (i) the LIBO Rate for such Payment Period plus (ii) the Applicable
Percentage per annum.
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