ANNEX A
DEFINITIONS
GENERAL PROVISIONS
(a) In each Operative Agreement, unless otherwise expressly provided, a
reference to:
(1) each of "Lessee", "Lessor", "Owner Trustee", "Owner Participant", and
any other Person includes any successor in interest to it and any permitted
transferee, permitted purchaser, or permitted assignee of it;
(2) any agreement or other document (including any annex, schedule, or
exhibit thereto, or any other part thereof) includes that agreement or other
document as amended, supplemented, or otherwise modified and any agreement or
other document entered into in substitution or replacement therefor from time to
time, and in each case in accordance with its terms and in accordance with the
Operative Agreements;
(3) any provision of any Law includes any such provision as amended,
modified, supplemented, substituted, reissued, or reenacted before the Delivery
Date, and thereafter from time to time;
(4) "Agreement", "this Agreement", "hereby", "herein", "hereto", "hereof",
"hereunder", and words of similar import, when used in any Operative Agreement,
refer to such Operative Agreement as a whole and not to any particular provision
of such Operative Agreement;
(5) "including", "include", and terms or phrases of similar import means
"including [etc.], without limitation";
(6) "or" is conjunctive and not disjunctive; and
(7) a reference to a "section" or "ss.", an "Exhibit", an "Annex", or a
"Schedule" in any Operative Agreement, or in any annex thereto, is a reference
to a section of, or an exhibit, an annex, or a schedule to, such Operative
Agreement or such annex, respectively.
(b) Each exhibit, annex, and schedule to each Operative Agreement is
incorporated in, and is a part of, such Operative Agreement.
(c) Unless otherwise defined or specified in any Operative Agreement, all
accounting terms therein shall be construed and all accounting determinations
thereunder shall be made in accordance with GAAP.
(d) Headings used in any Operative Agreement are for convenience only, and
shall not in any way affect the construction of, or be taken into consideration
in interpreting, such Operative Agreement.
(e) For purposes of each Operative Agreement, the existence of an Event of
Default, Default, or Special Default referred to in ss. 14.5 of the Lease shall
not prohibit Lessee from taking any action or exercising any right that is
conditioned on the non-existence of any Event of Default, Default, or Special
Default if such Event of Default, Default, or Special Default consists of the
institution of reorganization proceedings with respect to Lessee under Chapter
11 of the Bankruptcy Code, and the trustee or debtor-in-possession in such
proceedings (1) has agreed to perform its obligations under the Lease with the
approval of the applicable court and thereafter continues to perform such
obligations in accordance with Section 1110, or (2) has assumed the Lease with
the approval of the relevant court and thereafter continues to perform its
obligations under the Lease.
DEFINED TERMS
ACTUAL KNOWLEDGE: (a) as it applies to Owner Trustee, actual
knowledge of a responsible officer in the Corporate Trust Department,
respectively, and (b) as it applies to Owner Participant or Lessee, actual
knowledge of a Vice President or more senior officer of Owner Participant or
Lessee (respectively), or any other officer of Owner Participant or Lessee
(respectively) having responsibility for the Transactions; PROVIDED, that each
of Lessee, Owner Participant, and Owner Trustee, shall be deemed to have "Actual
Knowledge" of any matter as to which it has received notice from Lessee, Owner
Participant, or Owner Trustee, given pursuant to ss. 15.7 of the Participation
Agreement.
ADDITIONAL INSURED: defined inss. D of Annex D to the Lease.
AFFILIATE of any Person: any other Person directly or indirectly
controlling, controlled by, or under common control with such Person. For
purposes of this definition, "control" means the power, directly or indirectly,
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract, or otherwise,
and "controlling", "controlled by", and "under common control with" have
correlative meanings, PROVIDED, that Owner Participant will not be deemed to be
an "Affiliate" of Lessor or Owner Trustee (and vice versa).
AIRCRAFT: the Airframe and Engines.
AIRCRAFT BILL OF SALE: a warranty bill of sale granting title to the
Aircraft, which bill of sale Seller is to deliver to Owner Trustee on the
Delivery Date.
AIRCRAFT DESCRIPTION EXHIBIT: Exhibit A to the Lease.
AIRCRAFT DOCUMENTS: all technical data, manuals, and log books, and all
inspection, modification, and overhaul records and other service, repair,
maintenance, and technical records that the relevant Aviation Authority, the
Lease, or the Maintenance Program requires be maintained with respect to the
Aircraft, including all required additions, renewals, revisions, and
replacements of any such materials, in each case in whatever form and by
whatever means or medium (including microfiche, microfilm, paper, or computer
disk) such materials are maintained or retained by or on behalf of Lessee
(PROVIDED, that all such materials shall be maintained in the English language).
AIRFRAME: (1) the aircraft (excluding Engines or engines from time to time
installed thereon) manufactured by Airframe Manufacturer and identified by
Airframe Manufacturer's model number, United States registration number, and
Airframe Manufacturer's serial number set forth in the Aircraft Description
Exhibit, or (2) any Replacement Airframe, including in either case any and all
Parts incorporated or installed in or attached or appurtenant to such airframe,
and any and all Parts removed from such airframe, unless title to such Parts
does not vest in Lessor in accordance with ss. 8.1 and Annex C of the Lease.
Upon substitution of a Replacement Airframe under and in accordance with the
Lease, such Replacement Airframe shall become subject to the Lease and shall be
the "Airframe" for all purposes of the Operative Agreements, and the replaced
Airframe shall cease to be subject to the Lease and shall cease to be the
"Airframe".
AIRFRAME MANUFACTURER: The Boeing Company, a Delaware corporation.
APPLICABLE PERCENTAGE: means (A) for the [first one-year Renewal
Term][first two one-year Renewal Terms], (1) 100% if, at the time that the first
Renewal Term begins, Lessee provides Owner Participant with an opinion of
counsel reasonably satisfactory to Owner Participant to the effect that, due to
a Change in Tax Law or clarification of law, if the Applicable Percentage had
been 100% on the Closing Date no Renewal Term would have been included in the
Lease Term under Code ss. 467 and the Treasury Regulations thereunder and (2)
otherwise, 105%; and (B) for any subsequent Renewal Term, 100%.
APPRAISER: a firm of internationally-recognized, independent aircraft
appraisers.
AVIATION AUTHORITY: the FAA or, if the Aircraft is registered with any
other Government Entity under and in accordance withss. 7.1.2 of the Lease, such
other Government Entity.
BANKRUPTCY CODE: the United States Bankruptcy Code, 11 U.S.C.ss. 101 ET
SEQ.
BASE TERM: the period beginning on and including the Commencement Date and
ending on the Scheduled Expiration Date therefor, or such earlier date on which
the Term terminates in accordance with the provisions of the Lease.
BASIC RENT: the rent (including, to the extent applicable, Renewal Rent)
payable or allocable, as applicable, for the Aircraft pursuant to ss. 3.2.1(a)
of the Lease.
BILLS OF SALE: the FAA Bill of Sale and the Aircraft Bill of Sale.
BURDENSOME INDEMNITY PAYMENT: an indemnity payment pursuant to the Tax
Indemnity Agreement or ss. 9 of the Participation Agreement which would cause
the aggregate net present value of all losses paid or payable by Lessee as of
the determination date, discounted quarterly at the SLV Rate, to the
determination date, to exceed 2.5% of Lessor's Cost.
BUSINESS DAY: any day other than a Saturday, Sunday, or other day on which
commercial banks are authorized or required by law to close in New York, NY,
Indianapolis, IN, or Salt Lake City, UT.
CASH EQUIVALENTS: the following securities (which shall mature within 90
days of the date of purchase thereof): (1) direct obligations of the U.S.
Government; (2) obligations fully guaranteed by the U.S. Government; (3)
certificates of deposit issued by, or bankers' acceptances of, or time deposits
or a deposit account with, Owner Trustee, or any bank, trust company, or
national banking association incorporated or doing business under the laws of
the United States or any state thereof having a combined capital and surplus and
retained earnings of at least $500,000,000 and having a rate of "C" or better
from the Thomson BankWatch Service; or (4) commercial paper of any issuer doing
business under the laws of the United States or one of the states thereof and in
each case having a rating assigned to such commercial paper by Standard & Poor's
or Moody's at least equal to A1 or P1, respectively.
CITIZEN OF THE UNITED STATES: defined inss. 40102(a)(15) of the
Transportation Code and in the FARs.
CLOSING: the closing of the transactions contemplated by the Participation
Agreement on the Delivery Date.
CODE: the Internal Revenue Code of 1986; PROVIDED, that when used in
relation to a Plan, "Code" shall be interpreted in accordance with the
regulations and rulings issued thereunder.
COMMENCEMENT DATE: defined in Schedule 1 to the Lease.
COMMITMENT: Owner Participant's commitment to participate in the payment of
Lessor's Cost, as reflected in Schedule 2 of the Participation Agreement.
COMMITMENT TERMINATION DATE: defined in Schedule 3 to the Participation
Agreement.
CONSENT AND AGREEMENT: Manufacturer Consent and Agreement N___AT, dated the
Delivery Date, of Airframe Manufacturer.
CORPORATE TRUST DEPARTMENT or TRUST OFFICE: Owner Trustee's principal
corporate trust office, located from time to time at Owner Trustee's address for
notices under the Participation Agreement, or such other office at which Owner
Trustee's corporate trust business shall be administered and which Owner Trustee
specifies by notice in writing to Lessee.
CRAF: the Civil Reserve Air Fleet Program established pursuant to 10
U.S.C.ss. 9511 - 13, or any similar substitute program.
DEBT: any liability for borrowed money, or any liability for the payment of
money in connection with any letter of credit transaction, or any other
liabilities evidenced or to be evidenced by bonds, debentures, notes, or other
similar instruments.
DELAYED DELIVERY DATE: a delayed Delivery Date notified to each Participant
and Owner Trustee by Lessee pursuant to ss. 4.3 of the Participation Agreement,
which delayed Delivery Date shall be a Business Day not later than the
Commitment Termination Date.
DELIVERY DATE: __________, 200_ (which is the date when the Aircraft is
delivered to and accepted by Lessee under the Lease and when the Closing
occurs).
DOLLARS, UNITED STATES DOLLARS, or $: the lawful currency of the United
States.
DOT: the Department of Transportation of the United States, or any
Government Entity succeeding to the functions of such Department of
Transportation.
EBO DATE: as specified in Schedule 5 to the Lease.
EBO PRICE: as specified in Schedule 5 to the Lease, as adjusted pursuant
toss. 3.2.1 of the Lease.
ELIGIBLE INSTITUTION: the corporate trust department of (1) Wilmington
Trust Company, acting solely in its capacity as a "securities intermediary" (as
defined in UCC ss. 8-102(14)), or (2) a depository institution organized under
the laws of the United States of America or any one of the states thereof or the
District of Columbia (or any U.S. branch of a foreign bank), which has a
long-term unsecured debt rating from Moody's and Standard & Poor's of at least
A-3 or its equivalent.
ENGINE: (1) each of the engines manufactured by Engine Manufacturer and
identified by Engine Manufacturer's model number and Engine Manufacturer's
serial number in the Aircraft Description Exhibit and originally installed on
the Airframe on delivery thereof pursuant to the Lease, or (2) any Replacement
Engine, in any case whether or not from time to time installed on the Airframe
or installed on any other airframe or aircraft, including (for both clauses (1)
and (2)) any and all Parts incorporated or installed in or attached or
appurtenant to such engine, and any and all Parts removed from such engine,
unless title to such Parts does not vest in Lessor in accordance with ss. 8.1
and Annex C of the Lease. Upon substitution of a Replacement Engine under and in
accordance with the Lease, such Replacement Engine shall become subject to the
Lease and shall be an "Engine" for all purposes of the Operative Agreements, and
the replaced Engine shall cease to be subject to the Lease and shall cease to be
an "Engine".
ENGINE MANUFACTURER: CFM International.
[ENGINE MANUFACTURER WARRANTY AGREEMENT: Engine Manufacturer Warranty
Agreement N___AT, dated the Delivery Date, among Engine Manufacturer, Owner
Trustee and Lessee.]
ERISA: the Employee Retirement Income Security Act of 1974.
EVENT OF LOSS with respect to the Aircraft, the Airframe, or any Engine:
any of the following circumstances, conditions, or events with respect to such
property, which shall have occurred for any reason whatsoever:
(1) the destruction of such property, damage to such property beyond
economic repair, or rendition of such property permanently unfit for normal use
by Lessee;
(2) the actual or constructive total loss of such property, or any damage
to such property, or requisition of title or use of such property, which results
in an insurance settlement with respect to such property on the basis of a total
loss or constructive or compromised total loss;
(3) any theft, hijacking, or disappearance of such property for 90
consecutive days or more or, if earlier, the fifth day following the end of the
Term;
(4) any seizure, condemnation, confiscation, taking, or requisition
(including loss of title) of such property by any Government Entity or purported
Government Entity (other than a requisition of use by the U.S. Government) for
180 consecutive days or, if earlier, at the end of the Term;
(5) any seizure, condemnation, confiscation, taking, or requisition of use
of such property by the U.S. Government that continues until the 30th day after
the last day of the Term; and (6) as a result of any law, rule, regulation,
order, or other action by the Aviation Authority or by any Government Entity of
the government of registry of the Aircraft or by any Government Entity otherwise
having jurisdiction over the operation or use of the Aircraft, the use of the
Aircraft, the Airframe, or any Engine in the normal course of Lessee's business
of passenger air transportation is prohibited for 180 consecutive days, unless,
before the expiration of such 180-day period, Lessee undertakes and is
diligently carrying forward such steps as are necessary or desirable to permit
the normal use of such property by Lessee, but in any event if such use is
prohibited for a continuous period of 360 days, PROVIDED, that such prohibition
shall not create an Event of Loss if such prohibition applies to other B737-800
aircraft (or CFM 56-7 engines) in Lessee's fleet and also applies to Boeing
737-800 aircraft (or CFM 56-7 engines) not owned or operated by Lessee and,
before the expiration of such 360-day period, Lessee conforms at least one unit
of such property in its fleet to the requirements of any such law, rule,
regulation, order, or other action, begins regular commercial use of the same in
such jurisdiction, and is diligently carrying forward, in a manner which does
not discriminate against such property in so conforming such property, steps
which are necessary or desirable to permit the normal use of the Aircraft by
Lessee, but in any event if such use is prohibited for a continuous period of
540 days or such use is prohibited at the expiration of the Term.
EXPENSES: any and all liabilities, obligations, losses, damages,
settlements, penalties, claims, actions, suits, costs, demands, judgments,
expenses, and disbursements (including reasonable fees, disbursements, and
reasonable out of pocket costs and expenses of legal counsel, accountants,
appraisers, inspectors, or other professionals, and costs of investigation).
FAA: the Federal Aviation Administration of the United States, or any
Government Entity succeeding to the functions of such Federal Aviation
Administration.
FAA BILL OF SALE: a bill of sale for the Aircraft on AC Form 8050-2 (or any
other FAA-approved form), delivered to Owner Trustee on the Delivery Date by
Seller.
FAA COUNSEL: Crowe & Dunlevy.
FAA-FILED DOCUMENTS: the Lease, the Trust Agreement, the FAA Bill of Sale,
and an application for registration of the Aircraft with the FAA in Owner
Trustee's name.
FARS: the Federal Aviation Regulations issued or promulgated pursuant to
the Transportation Code from time to time.
FAIR MARKET RENTAL VALUE: the fair market rental value in Dollars for the
Aircraft that would apply in an arm's-length transaction between an informed and
willing lessee under no compulsion to lease, and an informed and willing lessor
under no compulsion to lease, for the applicable period, assuming that (1)
except as provided in ss. 15.4 of the Lease, the Aircraft has been maintained in
accordance with, and is in the condition required by, the Lease, (2) rent would
be paid quarterly, and (3) except as provided in ss. 15.4 of the Lease, the
Aircraft would be leased during any such period on the same terms and conditions
(except for Basic Rent amount) as during the Base Term.
FAIR MARKET SALES VALUE: the fair market sales value in Dollars for the
Aircraft that would apply in an arm's-length transaction between an informed and
willing buyer under no compulsion to buy, and an informed and willing seller
under no compulsion to sell, in a transaction that would close on or about the
relevant time of determination, assuming that (1) except as provided in ss. 15.4
of the Lease, the Aircraft has been maintained in accordance with the Lease, and
is in the condition required by the Lease, and (2) the Aircraft will be
delivered to such informed and willing buyer in the return condition required by
the Lease.
FINANCING STATEMENTS: UCC-1 (and, where appropriate, UCC-3) financing
statements covering the Aircraft, as a precautionary matter, by Lessee, as
lessee, showing Owner Trustee as lessor, for filing in Indiana and each other
jurisdiction where (in Owner Trustee's opinion) filing is reasonably desirable.
FIXED RATE: defined in Schedule 1 to the Lease.
FSB: First Security Bank, National Association, a national banking
association, not in its capacity as trustee under the Trust Agreement, but in
its individual capacity.
GAAP: generally accepted accounting principles as set forth in the
statements of financial accounting standards issued by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants, as
varied by any applicable financial accounting rules or regulations issued by the
SEC, and applied on a basis consistent with prior periods except as disclosed in
the pertinent Person's financial statements.
GOVERNMENT ENTITY: (1) any federal, state, provincial, or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency, or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative, or regulatory
functions of such government, or (2) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
GTA: the General Terms Agreement, as defined in the Purchase Agreement
Assignment.
GUARANTEE: Guarantee N___AT, dated the Delivery Date, issued by Guarantor
in favor of Owner Trustee, FSB, and each Owner Participant.
GUARANTOR: AmTran, Inc., an Indiana corporation.
INDEMNITEE: (1) FSB and Owner Trustee, (2) each separate or additional
trustee appointed pursuant to the Trust Agreement, (3) each Owner Participant,
(4) the Trust Estate, (5) each Affiliate of the Persons described in clauses (1)
through (3), (6) the directors, officers, employees, and agents of each of the
Persons described in clauses (1) through (3) and in clause (5) and (7) the
successors and permitted assigns of the Persons described in clauses (1) through
(3), and in clauses (5) and (6). If any Indemnitee is Airframe Manufacturer or
Engine Manufacturer or any subcontractor or supplier of either thereof, such
Person shall be an Indemnitee only in its capacity as Owner Participant.
IRS: the Internal Revenue Service of the United States, or any Government
Entity succeeding to the functions of such Internal Revenue Service.
JAA: the Joint Aviation Authority of the European Union.
LAW: (1) any constitution, treaty, statute, law, decree, regulation, order,
rule, or directive of any Government Entity, and (2) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
LEASE or LEASE AGREEMENT: Lease Agreement N___AT, dated the Delivery Date,
between Owner Trustee and Lessee.
DEFAULT: (1) any condition, circumstance, act, or event that, with the
giving of notice or the lapse of time, would constitute an Event of Default, or
(2) any Event of Default.
EVENT OF DEFAULT: any one or more of the conditions, circumstances, acts,
or events set forth inss. 14 of the Lease.
LESSEE: American Trans Air, Inc., an Indiana corporation.
LESSEE ADVISOR: Capstar Partners, LLC, in its capacity as special advisor
to Lessee.
LESSEE OPERATIVE AGREEMENTS: the Participation Agreement, the Lease, the
Tax Indemnity Agreement, the Purchase Agreement Assignment [, the Engine
Manufacturer Warranty Agreement,] and each other agreement between Lessee and
any other party to the Participation Agreement, relating to the Transactions,
delivered on the Delivery Date.
LESSEE PERSON: Lessee, any sublessee, assignee, successor, or other user or
Person in possession of the Aircraft, the Airframe, or an Engine with or without
color of right, or any Affiliate of any of the foregoing (excluding any Tax
Indemnitee or any related Tax Indemnitee with respect thereto, or any Person
using or claiming any rights with respect to the Aircraft, the Airframe, or an
Engine directly by or through any of the Persons in this parenthetical phrase,
but not excluding any Person claiming directly or indirectly through or under
the Lease).
LESSEE'S ADVISOR(S): defined in Schedule 3 to the Participation Agreement.
LESSOR: Owner Trustee in its capacity as lessor under the Lease.
LESSOR LIEN, with respect to any Person, on any property (including the
Trust Estate, the Aircraft, Airframe, Engines, Parts, or Aircraft Documents) or
any payments: any Lien on such property or payments that results from (1) claims
against such Person (if such Person is a trustee, whether in its individual
capacity or in its capacity as a trustee) not related to any of the
Transactions, (2) acts or omissions of such Person (if such Person is a trustee,
whether in its individual capacity or in its capacity as a trustee) in violation
of its obligations under any of the terms of the Operative Agreements, or not
related to the Transactions, (3) Taxes against such Person (if such Person is a
trustee, whether in its individual capacity or in its capacity as a trustee) or
any of its Affiliates that Lessee is not required to indemnify under the
Participation Agreement, or (4) claims against such Person arising out of its
transfer of all or part of its interest in the Aircraft, the Trust Estate, or
the Operative Agreements, other than a Transfer required by the terms of the
Operative Agreements or attributable to the existence of an Event of Default.
LESSOR'S COST: the amount paid by Owner Trustee to Seller to purchase the
Aircraft pursuant to the Purchase Agreement Assignment and the Participation
Agreement, as designated by Dollar amount in Schedule 3 to the Participation
Agreement.
LIEN: any mortgage, pledge, lien, charge, claim, encumbrance, lease, or
security interest affecting the title to or any interest in property.
LOSS PAYMENT DATE: defined inss. 10.1.2(a)(1) of the Lease.
MAINTENANCE PROGRAM: defined in Annex C to the Lease.
MATERIALLY ADVERSE CHANGE with respect to any Person: any event, condition,
or circumstance that materially adversely affects such Person's business,
prospects, or consolidated financial condition, or its ability to observe or
perform its obligations, liabilities, and agreements under the Operative
Agreements.
MINIMUM LIABILITY INSURANCE AMOUNT: defined in Schedule 1 to the Lease.
MOODY'S: Moody's Investors Service, Inc.
NET ECONOMIC RETURN: Owner Participant's net after-tax book yield, using
the "multiple investment sinking fund" method of analysis, and aggregate and
present value (discounted at 6% per annum) of the net after-tax cash flow,
computed both through the EBO Date (assuming Lessee's exercise of the early
buy-out option in ss. 17.3.1(a)(1) of the Lease) and through the end of the Base
Term, and computed on the basis of the same methodology and assumptions as the
initial Owner Participant used in determining Basic Rent payments and
allocations, Stipulated Loss Value percentages, and Termination Value
percentages, as of the Delivery Date, as such assumptions are adjusted for
events that have been the basis for adjustments to Basic Rent pursuant to ss.
3.2.1(b) of the Lease or events giving rise to indemnity payments pursuant to
ss. 5 of the Tax Indemnity Agreement; PROVIDED, that, even if the initial Owner
Participant transfers its interest, Net Economic Return shall be calculated as
if the initial Owner Participant had retained its interest; PROVIDED FURTHER,
that, notwithstanding the preceding proviso, solely for purposes of ss. 11 of
the Participation Agreement and calculating any adjustments to Basic Rent
payments and allocations, Stipulated Loss Values, EBO Price, and Termination
Values in connection with a refunding pursuant to such ss. 11 at a time when
Owner Participant is a transferee (other than an Affiliate of the initial Owner
Participant), the after-tax yield (but not the after-tax cash flow) component of
Net Economic Return shall be calculated on the basis of the methodology and
assumptions used by the transferee Owner Participant as of the date when it
acquires its interest.
NET PRESENT VALUE OF RENTS: the present value, as of the date of
determination, discounted at 10% per annum, compounded quarterly to the date of
determination, of all unpaid Basic Rent payments during the then-remaining
portion of the Base Term, expressed as a percentage of Lessor's Cost.
NET WORTH for any Person: the excess of its total assets over its total
liabilities.
NON-U.S. PERSON: any Person, other than a United States person as defined
in Codess. 7701(a)(30).
OFFICER'S CERTIFICATE of any party to the Participation Agreement: a
certificate signed by the Chairman, the President, any Vice President (including
those with varying ranks such as Executive, Senior, Assistant, or Staff Vice
President), the Treasurer, or the Secretary of such party.
OPERATIVE AGREEMENTS: the Participation Agreement, the Trust Agreement, the
Purchase Agreement Assignment, the Guarantee, the Consent and Agreement, the
Engine Manufacturer Warranty Agreement, the Lease, the Bills of Sale, and the
Tax Indemnity Agreement.
OP JURISDICTION: defined in Schedule 3 to the Participation Agreement.
OWNER PARTICIPANT: the Person executing the Participation Agreement as
"Owner Participant"; except that, after an Owner Participant Transfers its
interest to a successor Owner Participant, such transferor shall not be an
"Owner Participant" (except as provided in ss. 10.2 of the Participation
Agreement) and the successor Owner Participant shall be the "Owner Participant".
OWNER PARTICIPANT AGREEMENTS: the Participation Agreement, the Tax
Indemnity Agreement, the Trust Agreement and each other agreement between Owner
Participant and any other party to the Participation Agreement relating to the
Transactions, delivered on the Delivery Date.
OWNER TRUSTEE: First Security Bank, National Association, a national
banking association, not in its individual capacity, except as expressly
provided in any Operative Agreement, but solely as Owner Trustee under the Trust
Agreement.
OWNER TRUSTEE AGREEMENTS: the Participation Agreement, the Lease, the Trust
Agreement, the Purchase Agreement Assignment, [the Engine Manufacturer Warranty
Agreement,] and each other agreement between Owner Trustee and any other party
to the Participation Agreement, relating to the Transactions, delivered on the
Delivery Date.
PARTICIPATION AGREEMENT: Participation Agreement N___AT, dated the Delivery
Date, among Lessee, Owner Participant, Owner Trustee, and FSB.
PARTS: all appliances, parts, components, instruments, appurtenances,
accessories, furnishings, seats, and other equipment of whatever nature (other
than (1) Engines or engines, and (2) any items leased by Lessee from a third
party other than Lessor) from time to time installed or incorporated in or
attached or appurtenant to the Airframe or any Engine.
PAST-DUE RATE: defined in Schedule 1 to the Lease.
PAYMENT DATE: each __________, __________, __________, and __________
during the Term, commencing with the first such date to occur after the
Commencement Date.
PAYMENT PERIOD: each of the consecutive quarterly periods (or such
applicable shorter period beginning on the Delivery Date or the first day of a
Renewal Term) during the Term and ending on a Payment Date, the first such
period commencing on and including the Delivery Date.
PERMITTED AIR CARRIER: (1) any manufacturer of commercial airframes or
commercial aircraft engines, or any Affiliate thereof, (2) any Permitted Foreign
Air Carrier, (3) any Person approved in writing by Owner Participant, or (4) any
U.S. Air Carrier.
PERMITTED COUNTRY: any country listed on Schedule 5 to the Lease, subject
to the notes set forth on such Schedule.
PERMITTED FOREIGN AIR CARRIER: any air carrier that (1) has its principal
executive offices in a Permitted Country, and (2) is authorized to conduct
commercial airline operations and to operate jet aircraft similar to the
Aircraft under the applicable Laws of such Permitted Country.
PERMITTED INSTITUTION: any bank, trust company, insurance company,
financial institution, or corporation or limited liability company (other than,
without Lessee's consent, a commercial air carrier, a commercial aircraft
operator, a freight forwarder, an airframe manufacturer (other than Airframe
Manufacturer) or aircraft engine manufacturer (other than Engine Manufacturer),
or an Affiliate of any of the foregoing), in each case with a combined capital
and surplus or net worth of at least $50,000,000.
PERMITTED LIEN: any Lien described in clauses (a) through (g) ofss. 6 of
the Lease.
PERMITTED SUBLEASE: a sublease permitted underss. 7.2.7 of the Lease.
PERMITTED SUBLESSEE: the sublessee under a Permitted Sublease.
PERSON or PERSON: an individual, firm, business, partnership, joint
venture, trust, trustee, Government Entity, organization, association,
corporation, limited liability company, government agency, governmental
committee, governmental department, governmental authority, and other body or
organization, corporate or incorporate, whether having distinct legal status or
not, or any member of any of the same.
PLAN: any employee benefit plan within the meaning of ERISAss. 3(3), or any
plan within the meaning of Codess. 4975(e)(1).
PRELIMINARY NOTICE: defined inss. 17.1 of the Lease.
PURCHASE AGREEMENT: shall mean Purchase Agreement No. _____ by and between
Lessee and the Airframe Manufacturer, dated as of __________, 2000, including
the exhibits and letter agreements appended thereto and incorporated therein
(except Letter Agreement Nos. __________, __________, and ----------).
PURCHASE AGREEMENT ASSIGNMENT: Purchase Agreement and Engine Warranties
Assignment N___AT, dated the Delivery Date, between Lessee and Owner Trustee.
PURCHASE DATE: the last Business Day of the Base Term or a Renewal Term, as
specified in any Purchase Notice.
PURCHASE NOTICE: defined inss. 17.3.1 of the Lease.
REMOVABLE PARTS: defined inss. D of Annex C to the Lease.
RENEWAL NOTICE: defined inss. 17.2.1 of the Lease.
RENEWAL RENT: the basic rent payable for a Renewal Term, determined
pursuant toss. 17.2.2 of the Lease.
RENEWAL TERM: a one-year term for which the Lease is extended by Lessee (if
applicable) pursuant toss. 17 of the Lease.
RENT: Basic Rent and Supplemental Rent.
REPLACEMENT AIRFRAME: an airframe substituted for the Airframe pursuant
toss. 10 of the Lease.
REPLACEMENT ENGINE: an engine substituted for an Engine pursuant to the
Lease.
RETURN ACCEPTANCE SUPPLEMENT: a Return Acceptance Supplement, dated as of
the date the Aircraft is returned to Lessor pursuant toss. 5 of the Lease,
entered into by Lessor and Lessee, substantially in the form of Exhibit B to the
Lease.
SCHEDULED DELIVERY DATE: the expected Delivery Date that Lessee notifies to
each Owner Participant, and Owner Trustee pursuant to ss. 4.1 of the
Participation Agreement, which must be a Business Day not later than the
Commitment Termination Date.
SCHEDULED EXPIRATION DATE: defined in Schedule 1 to the Lease.
SEC: the Securities and Exchange Commission of the United States, or any
Government Entity succeeding to the functions of the Securities and Exchange
Commission.
SECTION 1110: Bankruptcy Codess. 1110.
SECURITIES ACT: the Securities Act of 1933.
SECURITY: a "security" as defined inss. 2(1) of the Securities Act.
SELLER: _______________ [Lessee] [Airframe Manufacturer] [other].
SIGNIFICANT EXPENDITURE: expenditures in excess of $5,000,000 for
non-severable improvements to the Aircraft which constitute "Mandatory
Modifications" as defined inss. D of Annex C to the Lease.
SIMILAR AIRCRAFT: defined in Schedule 1 to the Lease.
SLV RATE: defined in Schedule 1 to the Lease.
SPECIAL DEFAULT: (1) Lessee's failure to pay any amount of Basic Rent,
Stipulated Loss Value, or Termination Value when due, or (2) any Default
referred to inss. 14.5 of the Lease.
STANDARD & POOR'S: Standard & Poor's Ratings Services.
STIPULATED LOSS VALUE for the Aircraft: (1) during the Base Term, Lessor's
Cost multiplied by the percentage in Schedule 3 to the Lease (as adjusted from
time to time in accordance with ss. 3.2.1 of the Lease) for the pertinent
Stipulated Loss Value Date, and (2) during any Renewal Term, the amount
determined pursuant to ss. 17.2.3 of the Lease. If the event giving rise to an
obligation to pay any Stipulated Loss Value occurs and the actual date that the
loss of tax benefits resulting from such event shall be earlier or later than
the date assumed in calculating the federal income tax consequences reflected in
the applicable Stipulated Loss Value, such Stipulated Loss Value shall be
appropriately adjusted upwards or downwards to reflect the actual date of such
loss.
STIPULATED LOSS VALUE DATE for any month: the day in that month specified
in Schedule 3 to the Lease or, if that day is not a Business Day, the following
Business Day.
SUPPLEMENTAL RENT: all Expenses, Transaction Expenses, and all other
amounts, liabilities, indemnities, and obligations (other than Basic Rent) that
Lessee assumes or becomes obligated to pay or agrees to pay under any Lessee
Operative Agreement to or on behalf of Lessor or any other Person, including
Stipulated Loss Value, Termination Value, and indemnity payments under ss. 9 of
the Participation Agreement.
TAX ATTRIBUTE PERIOD: the period from the Delivery Date through December
31, 20__ [DELIVERY DATE YEAR PLUS SEVEN] or such longer period of depreciation
as may be allowable by reason of an indemnifiable event under the Tax Indemnity
Agreement;
TAX INDEMNITEE: (1) FSB and Owner Trustee, (2) each separate or additional
trustee appointed pursuant to the Trust Agreement, (3) each Owner Participant,
(4) the Trust Estate, and (5) the successors, assigns, and agents of the
foregoing. For purposes of this definition, the term "Owner Participant" shall
include any member of an affiliated group (within the meaning of Code ss. 1504)
of which Owner Participant is a member at the pertinent time, if consolidated,
joint, or combined returns are filed for such affiliated group for federal,
state, or local income tax purposes.
TAX INDEMNITY AGREEMENT: Tax Indemnity Agreement N___AT, dated the Delivery
Date, between Lessee and Owner Participant.
TAXES: all fees (including license, recording, documentation, and
registration fees), taxes, including income, gross receipt franchise sales, use,
rental, turnover, business, occupational, excise, value-added, tangible and
intangible property and stamp taxes, levies, imposts, duties, charges,
assessments, or withholdings of any nature whatsoever imposed by any Taxing
Authority, and any penalties, additions to tax, fines, or interest thereon or
additions thereto.
TAXING AUTHORITY: any federal, state, or local government or other taxing
authority in the United States or its possessions, any foreign government or
political subdivision or taxing authority thereof, any international taxing
authority, or any territory or possession of the United States or taxing
authority thereof.
TERM: the term, commencing on the Delivery Date, for which the Aircraft is
leased pursuant to ss. 3 of the Lease, consisting of the Base Term and any
Renewal Term(s); PROVIDED, that, if at the scheduled end of the Term the
Aircraft or Airframe is being used, or was within the previous six months being
used, by the U.S. Government pursuant to CRAF, the Term shall be deemed extended
for the period necessary to accommodate usage of the Aircraft or Airframe
pursuant to CRAF plus six months thereafter, and Lessee shall be obligated to
pay Basic Rent for any such extension period at a quarterly rate equal to the
average of the Basic Rent paid during the Base Term or the applicable Renewal
Term (whichever ended immediately before such extension).
TERMINATION DATE: any Payment Date occurring after the seventh anniversary
of the Delivery Date on which the Lease terminates in accordance withss. 9 of
the Lease.
TERMINATION VALUE for the Aircraft: Lessor's Cost multiplied by the
percentage in Schedule 4 to the Lease (as adjusted from time to time in
accordance with ss. 3.2.1 of the Lease) for the pertinent Termination Value
Date. If the event giving rise to an obligation to pay any Termination Value
occurs and the actual date that the loss of tax benefits resulting from such
event shall be earlier or later than the date assumed in calculating the federal
income tax consequences reflected in the applicable Termination Value, such
Termination Value shall be appropriately adjusted upwards or downwards to
reflect the actual date of such loss.
TERMINATION VALUE DATE for any month: the day in such month specified in
Schedule 4 to the Lease or, if such day is not a Business Day, the following
Business Day.
THRESHOLD AMOUNT: defined in Schedule 1 to the Lease.
TRANSACTION EXPENSES: (1) the reasonable and actual fees and disbursements
incurred in connection with the negotiation, execution, and delivery of the
Operative Agreements of (a) Ray, Quinney & Nebeker, special counsel for Owner
Trustee under the Trust Agreement, such information to be furnished by Owner
Trustee, (b) FAA Counsel, such information to be furnished by Lessee, (c) Dewey
Ballantine LLP, special counsel to Owner Participant (as defined in Schedule 3
to the Participation Agreement), such information to be furnished by Owner
Participant, (d) Troutman Sanders LLP, special counsel to Lessee, such
information to be furnished by Lessee, and (e) Lessee Advisor, such information
to be furnished by Lessee, (2) all fees, taxes, and other charges payable in
connection with the recording or filing of instruments and financing statements,
such information to be furnished by Lessee, (3) the initial fee and reasonable
and actual disbursements of Owner Trustee under the Trust Agreement, such
information to be furnished by Owner Trustee, (4) the fee of the Appraiser with
respect to the appraisal of the Aircraft referred to in ss. 5.1.2(l) of the
Participation Agreement, such information to be furnished by Owner Participant,
and (5) the equity placement fee and reasonable disbursements of Lessee's
Advisor(s), such information to be furnished by Lessee.
TRANSACTIONS: the transactions contemplated by the Operative Agreements.
TRANSFER: the transfer, sale, assignment, or other conveyance of all or any
interest in any property, right, or interest.
TRANSFEREE: a Person to whom Owner Participant or Owner Trustee purports or
intends to Transfer any or all of its right, title, or interest in the Trust
Estate, as described in ss. 10.1.1(a), ss. 10.1.2, or ss. 10.1.3 (but excluding
participants in any participation referred to in ss. 10.1.3) of the
Participation Agreement.
TRANSPORTATION CODE: subtitle VII of title 49, United States Code.
TRUST: the trust created by the Trust Agreement.
TRUST AGREEMENT: Trust Agreement N___AT, dated as of __________ 1, 200_,
between Owner Participant and FSB.
TRUST ESTATE: all Owner Trustee's estate, right, title, and interest in and
to the Aircraft, the Lease, the Purchase Agreement, [and the Engine Manufacturer
Warranty Agreement,] including all Basic Rent and Supplemental Rent (including
insurance proceeds and requisition, indemnity, or other payments of any kind for
of with respect to the Aircraft), but excluding any Excluded Payment.
UCC: the Uniform Commercial Code as in effect in any applicable
jurisdiction.
UNITED STATES or U.S.: the United States of America; PROVIDED, that
for geographic purposes, "United States" means the 50 states and the District of
Columbia of the United States of America.
U.S. AIR CARRIER: any United States air carrier who is a Citizen of the
United States holding an air carrier operating certificate issued by the
Secretary of Transportation pursuant to chapter 447 of the Transportation Code
for aircraft capable of carrying 10 or more individuals or 6000 pounds or more
of cargo, and as to whom there is in force an air carrier operating certificate
issued pursuant to FAR Part 121, or who may operate as an air carrier by
certification or otherwise under any successor or substitute provisions therefor
or in the absence thereof.
U.S. GOVERNMENT: the federal government of the United States, or any
instrumentality or agency thereof the obligations of which are guaranteed by the
full faith and credit of the federal government of the United States.
U.S. PERSON: any Person described in Codess. 7701(a)(30).
WET LEASE: any arrangement whereby Lessee or a Permitted Sublessee agrees
to furnish the Aircraft, the Airframe, or any Engine to a third party pursuant
to which the Aircraft, Airframe, or Engine is at all times in the operational
control of Lessee or a Permitted Sublessee, PROVIDED, that Lessee's obligations
under the Lease shall continue in full force and effect notwithstanding any such
arrangement.